212(c) sometimes available for post IRIIRA convictions

Monday, March 28th, 2011
By: Jonathan MontagJ.D.

In this posting I would like to discuss an arcane issue – 212(c) and Cancellation of Removal relief. Cancellation of Removal came about on April 1, 1997, after the passage of the Illegal Immigration Reform and Alien Responsibility Act of 1996 (IIRIRA). Because IIRIRA came into effect such a long time ago, by this time most people facing deportation are in post-IIRIRA removal proceedings rather than pre-IIRIRA exclusion or deportation proceedings . In exclusion and deportation proceedings, aliens could seek 212(c) relief for deportable or excludable conduct. After IIRIRA, aliens usually seek Cancellation of Removal. Seeking 212(c) relief will only come about it there are pre-AEDPA and IIRIRA convictions that cannot be forgiven by Cancellation of Removal. For example, suppose an alien became a permanent resident through immigration in 1985 and was convicted of possessing a controlled substance two separate times, once in 1990 and once in 2005. He cannot obtain Cancellation of Removal relief for the 1990 possession crime because he lacks the seven years of continuous residence because of the stop-time rule (INA § 240A(d)), which makes Cancellation of Removal unavailable to an alien who has not had seven years of continuous residence before being sent to immigration court or having been convicted of certain crimes. In this scenario, the conviction stops the alien’s continuous residence at five years. One might expect that he could seek 212(c) relief for the pre-IIRIRA 1990 possession crime and Cancellation of Removal for the 2005 drug possession crime. However this is not the case as the Eighth Circuit  and Ninth Circuit Courts of Appeals  have held that an alien cannot obtain both Cancellation of Removal and 212(c) at the same removal hearing based on a statute (INA § 240A(c)(6)) which states that an alien cannot obtain cancellation of removal relief if he has previously received cancellation of removal, the former suspension of removal relief, or 212(c) relief.

The same result, however, does not apply if the alien is in deportation or exclusion proceedings. In such a case, the Second, Fifth, and, just last week, the Ninth Circuit Courts of Appeal courts have held that the alien can seek 212(c) relief for the pre-IIRIRA and post-IIRIRA convictions. The reason is that the transition rules (IIRIRA § 309(c)) for the implementation of IIRIRA state that the IIRIRA abrogation of 212(c) does not apply to aliens already in exclusion or deportation proceedings. This transition rule, the courts have held, trumps a regulation (8 CFR § 1212.3(h)(3) which states that 212(c) is only available for convictions that followed plea agreements reached before IIRIRA’s effective date. While this line of cases may be of limited benefit because there are so few aliens still in pending deportation or exclusion proceedings and who have not already been deported, it may be of substantial use in prosecutions for illegal re-entry under INA § 276 for aliens found ineligible for 212(c) relief in deportation or exclusion proceedings because of post-IIRIRA removable offenses. Posted March 28, 2011.



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