212(c): The relief that just won't go away.


by Jonathan D. Montag1

            In immigration law it seldom occurs that a new law completely replaces an old one. Instead, a new law lays on top of the old, creating new analytical complexities that make every immigration practitioner part lawyer and part historian. Such is the case with the “former” INA

§ 212(c).

I. When 212(c) was king.

            From the passage of the Immigration Act of 1952 until the implementation of the Illegal Immigration Reform and Immigrant Responsibility Act on April 1, 1997, lawful permanent residents facing expulsion from the United States could, if eligible, apply for relief under the former INA § 212(c).

     The relief statute has been amended many times by Congress. A pre-1990 iteration stated as follows:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1) - (25), (30), and (31) of subsection (a) of this section. Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title.


            From November 29, 1990 to April 23, 1996, following the passage of the Immigration Act of 1990 (IMMACT), the relief statute included a provision barring relief to permanent residents who were convicted of aggravated felonies and served a sentence of five years. 2 On April 24, 1996, the 212(c) statute was radically revised following the signing by President Bill Clinton of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Curiously, there were two such two revisions. 3 The first emendation to the statute 4 changed the bar for aggravated felons from those having served a sentence of five years to those merely having been sentenced to five years. 5 The second revision 6 barred relief to all aggravated felons as well as to those subject to many other grounds of deportability. 7

            That version lasted until September 28, 1996, when the Illegal Immigration Reform and Alien Responsibility Act (IIRAIRA) 8 amended the statute to limit further those deportable for crimes of moral turpitude from eligibility for 212(c) relief. 9

II. Cancellation of removal, the new main relief statute.

            In addition to amending § 212(c), IIRAIRA substituted a new statute, Cancellation of Removal for Certain Permanent Residents, codified as INA § 240A(a), for

§ 212(c) effective April 1, 1997. This statute reads as follows:

Cancellation of Removal for Certain Permanent Residents.

The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien –


  (1) has been an alien lawfully admitted for permanent residence for not less than 5 years,


  (2) has resided in the United States continuously for 7 years after having been admitted in any status, and


  (3) has not been convicted of any aggravated felony.


            Section 212(c) through its various iterations has been quite complex, and attorneys spent forty-two years (from 1954 through 1996) litigating the meaning of its terms and scope. Issues included whether the statute applied only to returning aliens and not aliens already in the United States 10 ; what “lawful 11 ” meant in the phrase “lawful unrelinquished domicile”; and what domicile meant. 12 The knottiest issue involving § 212(c) pertained to the section’s being a waiver of grounds of inadmissibility. Courts of appeals have rather consistently held that to be eligible for § 212(c) in a deportation proceeding, an alien had to be deportable for an offense that had an inadmissibility counterpart. Thus, for example, an alien deportable for a firearms offense could not seek 212(c) relief because there is no ground of inadmissibility for such an offense. 13

            By way of comparison, cancellation of removal is, on its face, more straightforward. So long as an alien had the requisite period in permanent-resident status and the requisite residence after a lawful admission, and was not an aggravated felon, he or she could seek cancellation of removal relief. Thus, for example, an alien could seek cancellation of removal for a firearms offense or for having entered without inspection when relief from deportation was not available under the former § 212(c) statute. In reality, however, because of other modifying and limiting statutes, such as the “stop-time” rules found codified in INA § 240A(d), and limitations on relief codified in INA § 240A(c)(6), the inherent difficulty in writing statutes (or perhaps the clumsiness of the drafters), considerable litigation resulted, 14 and the new statutory scheme is hardly simpler than the old.

            The benefit from the statutory changes was clear to a certain class of aliens: those who would not have been eligible for § 212(c) relief but became eligible for cancellation of removal. Another class of aliens was adversely affected, however: those who would have been eligible for § 212(c) but are not eligible for cancellation of removal. The principal members of this class are aggravated felons who before the IMMACT and later AEDPA iterations of`

§ 212(c), could seek § 212(c) relief. The problem was compounded because AEDPA and IIRIRA also dramatically increased the number of aliens who were deportable by dramatically increasing the number of offenses that were classified as aggravated felonies. 15 Because it seemed on its face that § 212(c) relief had become unavailable to aliens after the cancellation of removal provision came into force on April 1, 1997, aliens with pre-AEDPA aggravated felonies lost the ability to seek relief that they had before § 212(c) was eliminated. Facing this problem, these aliens went to court. The issue went to the Supreme Court, and at least some of them ended up winning.

III. INS v. St. Cyr and impermissible retroactive application of the law.

            Because cancellation of removal for certain permanent residents is unavailable to aggravated felons, aliens who could have sought § 212(c) relief alleged that IIRIRA’s change in the law eliminating § 212(c) was unfairly retroactive. Aliens argued that before passage of the new laws, they could seek § 212(c) relief, but lost this ability when § 212(c) was repealed. The government argued that aliens who committed crimes did not do so expecting that they could be forgiven for them; deportation, the government contended. was a prospective development, a collateral consequence independent of the conviction itself. Thus, in the government’s estimation, the retroactive application of § 212(c)’s repeal was permissible.

            The Supreme Court in INS v. St. Cyr, 533 U.S. 289 (2001), concluded that the repeal as applied to certain cases was unfairly retroactive. At the outset, the court noted that Congress could write a statute that applied retroactively. To do so, however, Congress, based on fundamental principles of statutory construction, would have to express clearly and unambiguously its intent to apply the statute retroactively. 16

            After concluding, as the first step of its analysis, that Congress did not explicitly state that the repeal of § 212(c) was to apply retroactively, the Supreme Court proceeded to the second step: analyzing whether the repeal produced an impermissible retroactive effect. Importantly, the Supreme Court analyzed the impermissible effect as applied to aliens who “. . . were convicted pursuant to a plea agreement at a time when their plea would not have rendered them ineligible for § 212(c) relief.” 17 A statute has an impermissible retroactive effect, the Court held, when it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” 18

            The Court then concluded that aliens who pled guilty presumably did so to avoid a five-year sentence that would bar them from § 212(c) relief. Rejecting the government’s argument that the repeal of § 212(c) was not impermissibly retroactive because § 212(c) is a discretionary form of relief, and thus even by pleading guilty to avoid a sentence of five years or more, an alien could not be assured that he or she would actually be granted relief, the Supreme Court stated as follows: “There is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation. Prior to AEPDA and IIRIRA, aliens like St. Cyr had a significant likelihood of receiving § 212(c) relief. Because [St. Cyr] and other aliens like him, almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief by IIRIRA therefore has an obvious and severe retroactive effect.” 19

            The decision thus settled the issue for aliens who had pled guilty and were deportable at the time of their pleas, and had also pled guilty when § 212(c) was still available to them. Later, the Department of Justice promulgated regulations 20 in light of the St. Cyr decision. 21 The regulations went into effect on October 28, 2004. They answer some, but not all, of the questions unanswered by St. Cyr. One such question is whether an alien can seek § 212(c) relief if he had not accrued the seven years of residence at the time of his plea. The answer is “yes.” 22 Another question is whether an alien who enters into a plea agreement before April 24, 1996, but the conviction was not entered until after April 24, 1996, can seek § 212(c) relief. The answer, again, is “yes.” 23 The regulations also discuss eligibility for § 212(c) relief based on changes to

§ 212(c) under AEDPA, IIRIRA and November 29, 1990, changes effected by IMMACT. And, they consider whether 212(c) was available to aliens who were found guilty by a jury. The answer, this time, is “no.” 24

            St. Cyr, however, did not address various other questions concerning the retroactive repeal of § 212(c), and the regulations also fail to provide much eludication about those issues. To wit:

A. What if a person is convicted of a crime that was not a deportable offense or an aggravated felony before April 24, 2006?

            St. Cyr and the regulations envision a situation where an alien pleads guilty to an offense that is a ground of inadmissibility (at a minimum) 25 and could have resulted in five years of confinment, but structured his or her plea so that he or she would not receive such a sentence, therefore allowing him or her to seek § 212(c) relief. with the changes resulting from AEDPA and IIRIRA, he then became ineligible for relief because § 212(c) was unavailable, and he or she became an aggravated felon because the offense had been legislatively reclassified making the alien ineligible for Cancellation of Removal relief. Because of this impermissible retroactive effect, the Supreme Court has held that § 212(c) remained available under this scenario (as long as the person did not serve five years of detention if the conviction was after the November 29, 1990 IMMACT amendments to 212(c)).

            In United States v.Leon-Paz, 26 an alien was convicted of burglary in October 1995 and was sentenced to four years in prison. At the time, Leon-Paz was not deportable, as he at worst only had one crime of moral turpitude, which was not a deportable offense because of his 1988 admission to the United States (occurring more than five years before his crime). In October 1997, the INS commenced removal proccedings against him. Because of the changes in the law, he retroactively became an aggravated felon, presumably under INA § 101(a)(43)(G) (a theft or burglary offense with a term of imprisonment of at least a year). At his pre-St. Cyr removal hearing, the immigration judge concluded that he was ineligible for § 212(c) relief, and ordered him removed.

            The Ninth Circuit concluded that because at the time Leon-Paz pled guilty he would have been eligible for § 212(c) relief if his crime were then an aggravated felony, the amendment created an impermissible retroactive effect, and he therefore was eligible for this relief. Thus, because this was a federal criminal case involving illegal reentry issues, the Ninth Circuit held that when the immigration judge told him he was ineligible for § 212(c) relief, the advice was incorrect and therefore violating his right to due process. The case was remanded to determine if he were prejudiced by the violation.

            Under the post-Leon-Paz regulations, Leon Paz would be eligible for § 212(c) relief, because they do not contain a requirement that the aggrevated felony necessitating the relief was an aggravated felony at any particular time. 27

B. What if a person is convicted of a crime that was not a deportable offense or an aggravated felony before April 1, 1997?

            Another issue not discussed in St. Cyr is whether the amendments have an impermissible retroactive effect on an alien convicted of a crime between the time AEDPA’s amendments became effective and § 212(c)’s repeal became final (when IIRIRA became effective on April 1, 2007). One would think that if a person who was not removable at all, like Leon-Paz, suffered an impermissible retroactive effect for a pre-AEDPA conviction, a person who was convicted post-AEDPA of an offense that did not bar relief under AEDPA based on the terms of the plea agreement would also suffer an impermissible retroactive effect, and thus be eligible for

§ 212(c) relief. Remarkably, however, the Ninth Circuit Court of Appeals came to a different conclusion.

            In United States v. Velasco-Medina, 28 another illegal reentry case, Velasco-Medina pled guilty in June 1996 to second-degree burglary, petty theft with a prior, and being under the influence of a controlled substance after AEDPA came into effect but before the effective date of IIRIRA. He was sentenced to a year in prison. The Ninth Circuit appeared to assume that the conviction was a generically defined burglary, 29 and that the one-year sentence was for the burglary. Had Velasco-Medina been deportable at the time of his plea, the post-AEDPA definition of § 212(c) did not preclude him from seeking § 212(c) relief, as he was not an aggravated felon at that time. Only after IIRIRA did his burglary offense become an aggravated felony.

            Velasco-Medina was placed in removal proceedings in January 2000. By then, the burglary conviction was considered an aggravated felony under IIRIRA. The immigration judge concluded that Velasco-Medina was ineligible for cancellation, and § 212(c) was no longer available to him. Velasco-Medina was deported and later prosecuted after attempting to re-enter the United States. Like Leon-Paz, Velasco-Medina asserted that the immigration judge erred in holding that he was ineligible for§ 212(c) relief in light of St. Cyr and thereby violated his due process rights during the removal proceeding.

            The Ninth Circuit disagreed. It grounded its analysis in the reliance prong of St. Cyr, noting that St. Cyr had relied on the availability of § 212(c) relief when he pled guilty, structuring his plea so he would not be barred from the relief. Velasco-Paz, “. . . by contrast . . . was never eligible for discretionary relief under § 212(c) because his guilty plea did not render him deportable . . . . Thus, Velasco-Medina could not have developed the sort of settled expectations concerning § 212(c) relief that informed St. Cyr’s plea bargain and that animated the St. Cyr decision.” 30 Accordingly, the Ninth Circuit reasoned that there was no impermissible retroactive effect because Velasquez-Medina was not deportable when he pled guilty, and unlike St. Cyr, did not structure his plea to be able to receive § 212(c) relief.

            Almost as an afterthought, the Velasco-Medina Court raised another basis for finding there was no impermissible retroactive effect. What the court said, however, was incomprehensible. It noted that when Velasco-Medina pled guilty in June 1996, he knew that aggravated felons could not seek 212(c) relief because of the AEDPA amendment in April 1996. The court continued, “Velasco-Medina would have realized that if his conviction were re-characterized as an aggravated felony (as, in fact, it was by IIRIRA), he would have, under AEDPA, been ineligible for discretionary relief under § 212(c).” 31 How the court could expect Velasco-Medina to know it was possible that the definition of aggravated felony would change to include him and thus preclude him from relief from deportability (at a time when, according to the court, was not even deportable) is difficult to conceive. Even if Velasco-Medina were deportable for other convictions, and if the facts as recited in the case are true, he was – for two crimes of moral turpitude and controlled substance violations, how could he have possibly known that three months after his plea, one of his many crimes would morph into an aggravated felony? The Ninth Circuit essentially held that Velasco-Medina could not have relied on § 212(c) when he pled guilty because he knew that aggravated felons could not receive § 212(c) relief and, even though he was not one, he could become one as Congress could at any time pass, and the president could sign, a bill re-defining aggravated felony and make that re-definition clearly and unambiguously retroactive. 32

            What is more difficult to understand than the convoluted logic of Velasco-Medina, however, is how to reconcile it with Leon-Paz. The Leon-Paz Court had to reconcile its decision with Velasco-Medina because Velasco-Medina was decided before Leon-Paz. Both cases had the same basic fact pattern – an alien pled guilty without any need for § 212(c) – and because of changes in the law after their pleas were entered, they needed relief that had been eliminated. In Velasquez-Medina, the Ninth Circuit held that the alien could not have relied on the availability of relief he did not need when he pled guilty, and without this reliance (a settled expectation), the law was not impermissibly retroactive. In Leon-Paz, on the other hand, the court determined there was § 212(c) eligibility despite the lack of deportability at the time of the guilty plea.

            The Leon-Paz court distinguished Velasquez-Medina by noting that, unlike Velasquez-Medina, Leon-Paz knew he would be eligible for relief if his crime were suddenly re-defined to be an aggravated felony, because aggravated felons could receive § 212(c) relief at the time he pled guilty. Thus, Velasquez-Medina should have predicted that the definition of aggravated felony would expand, but Leon-Paz did not have to predict that the § 212(c) definition would change to preclude its applicability to an aggravated felon 33 .

            Most likely, the Leon-Paz Court distinguished Velasquez-Medina as a matter of judicial expediency. It is this author’s opinion that the court disagreed with the reasoning in Velasquez-Medina but could not reverse it without taking the case en banc. 34 Instead, the Leon-Paz panel took Velasquez-Medina’s incoherent reasoning and used it to distinguish Velasquez-Medina from Leon-Paz.

            Yet another IIRIRA retroactivity case involving relief from removal is Sinotes-Cruz v. Gonzales. 35 Sinotes-Cruz was a lawful permanent resident who was admitted as a lawful temporary resident under the amnesty program in May 1998 and later became a permanent resident in June 1990. He ultimately pled guilty to three crimes. In 1993, he pled guilty to two counts of assault and was sentenced to four years of probation. It appears that those assaults were morally turpitudinous and part of a common scheme. On August 6, 1997, Sinotes-Cruz pled guilty to child abuse. The INS then charged Sinotes Cruz in October 2000 as being removable. It relied on one of the 1993 assault convictions and the 1997 child abuse conviction to allege removability for two crimes of moral turpitude. 36 INS also alleged removability for child abuse based on the 1997 conviction, 37 and for one of the assault convictions as a crime of moral turpitude within five years of admission. 38

            The immigration judge sustained the two-crimes-of-moral-turpitude charge and the child abuse removability charge. He also determined that Sinotes-Cruz was ineligible for cancellation pursuant to § 240A because the stop-time provision set forth in INA § 240A(d)(1) cut off his time in 1993. Thus, because the 1993 convictions could not have collectively triggered the stop-time rule, the immigration judge must have concluded that the stop-time event was the 1993 conviction for a crime of moral turpitude within five years of admission for which a sentence of a year or more could be imposed. 39 When Sinotes-Cruz pled guilty in 1993, he was not deportable for the crime. With the advent of IIRAIRA, however, Sinotes-Cruz became removable for the crime of moral turpitude within five years of admission based on an amendment to INA § 237(a)(2)(A)(i)(I). He also became removable based on the post-IIRIRA child abuse conviction.

            At issue before the Ninth Circuit was whether INA § 240A(d)(1), the stop-time provision, applied retroactively to deny cancellation of removal relief as of when Sinotes-Cruz pled guilty to the 1993 crimes. 40 The court applied the same test for an impermissible retroactive effect as the Supreme Court did in St. Cyr, and concluded that Congress did not state clearly and unambiguously that the statute was to be applied retroactively. 41

            Next, the Ninth Circuit applied the second prong of the impermissible retroactivity test. That is, as discussed supra, a statute has an impermissible retroactive effect when it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” 42 It concluded that Sinotes-Cruz did indeed sustain prejudice based on the statute’s retroactive application. The court noted that like Leon-Paz, Sinotes-Cruz was not deportable at the time he accepted his guilty plea. Also like Leon-Paz, Sinotes-Cruz lost the ability to seek relief from deportation because of changes in the law, namely, the adoption of stop-time rules that made him ineligible for cancellation of removal relief. Much as this result made the change in the law impermissibly retroactive for Leon-Paz (there, the elimination of § 212(c)), so was the stop-time provision impermissibly retroactive to Sinotes-Cruz. Almost needless to say, neither gentleman pled guilty to be able to avail himself of relief from deportation, because at the time of the pleas, neither was deportable, and, significantly, that form of relief was not even available to Sinotes-Cruz when he pled guilty.


            There thus seems to be an intra-circuit split in the Ninth Cicuit regarding the court’s approach to retroactivity-related issues – Leon-Paz and Sinotes-Cruz versus Velasquez-Medina. Despite the language in Leon-Paz distinguishing Velasquez-Medina, what is really at issue is the role reliance plays in the retroactivity calculus. Velasquez-Medina seems to argue that it is the settled expectations of the alien that animates the analysis of whether a statute is impermissibly retroactive. 43 On the other hand, Leon-Paz seems to assert that there is an impermissible retroactive effect if at the time of an alien’s plea, the plea would not have rendered the alien ineligible for § 212(c) relief, and the law then changes to render the alien ineligible for the relief. 44

            It is also noteworthy that the Ninth Circuit in a pre-St. Cyr case regarding § 212(c) retroactivity, Magana-Pizano v. INS, 45 required the alien to demonstrate reliance on the old law as a prerequisite for arguing that there had been an impermissible retroactive effect. The court noted as follows:

Thus, we decline to hold as a matter of law that AEDPA § 440(d) does not apply to pre-enactment guilty or nolo contendere pleas to otherwise qualifying offenses. Accordingly, we join the other circuits who have considered the issue in concluding that, as a general rule, AEDPA does apply in such circumstances. However, we join the other circuits who have considered the issue in concluding that, as a general rule, AEDPA does apply in such circumstances. However, we leave open the possibility that, under a specific factual showing that a plea was entered in reliance on the availability of discretionary waiver under § 212(c), a petitioner may be able to establish that AEDPA § 440(d) has an impermissible retroactive application as to him 46 .


            This pre-St. Cyr view of reliance was vastly more restrictive than St. Cyr itself, in which the Supreme Court presumed reliance occurred at the time of the alien’s guilty plea. Magana-Pizano’s rule was also more restrictive than that embodied in the § 212(c) regulations set forth in 8 CFR § 1212.3, which allow for § 212(c) without any identifiable showing of reliance.

            In other contexts, the courts of appeals have similarly been grappling with reliance-related issues. In Hernandez de Anderson v. Gonzales, 47 the Ninth Circuit engaged in a comprehensive analysis of the two schools of retroactivity-related thought. 48 The case arose out of former INA

§ 244(a)(2) – the suspension of deportation provision. Ultimately, the Ninth Circuit concluded that if an alien can show reliance on the old law, he or she can therefore prove an impermissible retroactive effect. 49 One would hope that in the future, when courts grapple with the issue of whether there must be an identifiable showing of reliance to prove an impermissible retroactive effect, judges will consider how difficult and taxing on administrative and judicial resources it is to prove reliance. Indeed, anyone attempted to prove reliance in the days when Magana-Pizano controlled will understand the difficulty involved.

IV. Old 212(c) issues continue to plague practitioners.

            As noted supra, § 212(c) is a waiver of inadmissibility expanded to some aliens who are not seeking admission. For an alien who is not seeking admission, the ground of deportability under INA § 237(a) must have a related INA § 212(a) ground of inadmissibility for § 212(c) to be available. The § 212(c) regulations contain this comparability requirement. 50 The issue arises most commonly in sexual abuse of minor cases. This is because those crimes became aggravated felonies post-IIRIRA. Aliens who often were not even removable 51 suddenly not only became removable, but also by dint of being aggravated felons, are ineligible for cancellation of removal.

            A problem with the sexual abuse ground of deportability is that even though there is no textually-close counterpart in § 212, it is quite obviously a ground of inadmissibility as a crime of moral turpitude. When a crime obviously renders an alien inadmissible and also makes him or her deportable, it is difficult for a practitioner to accept that the alien cannot seek § 212(c) relief for it. Indeed, the distinctions seem semantic rather than substantive. Yet, this is precisely what the Ninth Circuit recently held in Abebe v. Gonzales. 52

            Aliens who are ineligible for relief because of the absence of a comparative ground have two potential solutions. If the alien has a citizen spouse or adult citizen son or daughter, he or she can seek adjustment of status to re-procure permanent residence. Also, if the crime did not constitute a ground of inadmissibility, such as when the case falls within the petty crime exception, it could not ipso facto preclude adjustment. Accordingly, if the crime that is a ground of inadmissibility is a crime of moral turpitude, the alien could then seek § 212(c) relief in conjunction with adjustment of status. 53

            Another ambitious strategy might involve having the alien to leave the country. Upon return, the alien would face grounds of inadmissibility and not removability and would thus be able to seek § 212(c) relief for the old conviction. Recently, however, the Ninth Circuit complicated that strategy by finding that if an alien were making a brief, casual, and innocent departure, he cannot be found inadmissible based on a pre-IIRIRA conviction by guilty plea as he would not be seeking admission. The basis for this holding in Camins v. Gonzales, 54 was that the definition of “admission” contained in INA § 101(a)(13) was impermissibly retroactive and the law prior to that, as articulated by the Supreme Court in Rosenberg v. Fleuti, 55 referred to as the Fleuti Doctrine, controls in cases involving pre-IIRIRA convictions 56 . Thus, an alien seeking to be placed in removal proceedings to be charged with inadmissibility would instead be admitted to the United States, placed in proceedings, charged with a ground of deportability, and therefore be ineligible for § 212(c) relief.


            Although Congress passed a law in 1996 that attempted to repeal § 212(c), that provision continues to be an important form of relief for aliens with old convictions. The complexities

§ 212(c) posed when it was the king of relief statutes still exist, albeit complicated by new complexities, particularly in light of the dynamic nature of retroactivity jurisprudence.

Jonathan D. Montag practices immigration law at The Law Offices of Jonathan D Montag in San Diego, California. He is a graduate of the University of Pennsylvania and the University of San Diego School of Law. He is a past San Diego Chapter Chair, a member of the National Benefit Center Liaison Committee, and is on the Immigration Today Editorial Advisory Board. He was named one of California Lawyer Magazine attorneys of the year for the year 2005.

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