Waiver of Inadmissibility under former INA § 212(c)
Open a current copy of the Immigration and Nationality Act (INA) and you will not find INA §212(c). This once formidable section provided relief for lawful permanent residents (“LPRs”) facing removal from the United States after a criminal conviction rendered them deportable/inadmissible, but was eventually repealed by Congress. Despite its repeal, however, the Supreme Court’s decision in INS v. St. Cyr held that relief under INA §212(c) could be retroactively applied in certain fact-specific cases. For some LPR’s, this could be the only saving grace that may be available to them to allow them to remain in the United States if they have been placed in removal proceedings/exclusion proceedings.
Former INA § 212(c) stated, in relevant part:
Foreign nationals 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 [INA § 212(a)].
In addition to LPRs seeking admission into the U.S., INA § 212(c) was later expanded to also be available to LPRs who did not proceed abroad, but risked losing their LPR status due to changes of the grounds of deportability/removability (i.e. in removal proceedings, if there was a comparable ground of inadmissibility). Over time, however, Congress gradually curtailed the scope of INA § 212(c).
A Brief Timeline and Narrowly Limiting Scope of INA §212(c)
November 29, 1990 - The Immigration Act of 1990, (“IMMAct”) amended INA § 212(c) to ban relief to those LPR’s who had been convicted of ‘aggravated felonies’ if they had served a term of imprisonment of at least five years.
April 24, 1996 – INA § 212(c) was amended by section 440(d) of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which further reduced the class of foreign nationals eligible for relief from removal by barring the following classes of foreign nationals: (1) aggravated felons; (2) those convicted of controlled substance offense; (3) those convicted of firearm offenses; (4) those convicted of certain miscellaneous crimes; such as espionage; and (5) those convicted of multiple crimes involving moral turpitude (“CIMT”).
April 1, 1997 - INA § 212(c) was replaced entirely with cancellation of removal for certain permanent residents pursuant to INA § 240(a).
Cancellation of Removal of Certain Lawful Permanent Residents under INA § 240(a) and Aggravated Felonies
Under INA § 240(a), an eligible LPR can apply for cancellation of removal; however, one bar to eligibility for relief that has been particularly troublesome for many LPRs was a conviction of an “aggravated felony.” An aggravated felony is a legal term, defined under INA § 101(a)(43) and includes a series of offenses, such as murder, rape, a crime of violence, and certain theft offenses to name a few. As a result of this ever-broadening definition of the term aggravated felony, many long-term LPR’s became ineligible for cancellation of removal because their old convictions were now considered aggravated felonies. Additionally, they were also ineligible for many types of relief/waivers because aggravated felons are ineligible for many of these waivers.
Supreme Court Retroactively Applies INA § 212(c)
In 2001, despite Congress’ effort to eliminate section 212(c), the United States’ Supreme Court ruled that relief under INA § 212(c) remained available retroactively to certain LPR’s, regardless of when they were placed into removal/deportation proceedings, if their “convictions were obtained through plea agreements [prior to April 1, 1997] and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect.” INS v. St. Cyr, 533 U.S. 289, 326 (2001). Thus, the Court reasoned it would be unfair not to retroactively apply section 212(c) to LPRs who may have relied on the section when agreeing to take a plea agreement.
Eligibility under Former INA § 212(c)
INA § 212(c) is a narrow, but important form of relief for foreign nationals with old convictions. To qualify for INA § 212(c), an applicant must meet the following criteria:
- Is an LPR or was an LPR prior to receiving a final order of deportation or removal;
- Had seven (7) years of lawful, unrelinquished domicile in the U.S.;
- Is charged with a comparable ground of inadmissibility or exclusion if charged under deportability grounds;
- Pled guilty or nolo contendere offense through a plea agreement made before April 1, 1997; and
- Was otherwise eligible to apply for INA § 212(c) at the time the plea was made.
Given the complexity of this waiver and the limited circumstances in which they can be utilized, LPR’s in removal proceedings/exclusion proceedings or who are considering applying for naturalization, are highly encouraged to seek legal counsel. There are a number of strategies and options that an experienced immigration attorney can explore on your behalf and advise you on the best course of action to allow you to remain a lawful permanent resident, if at all possible.
For our clients, we first thoroughly research their immigration and criminal history to ensure that we have a proper understanding of their case and the client is in fact eligible for INA §212(c) relief. Second, depending on the individuals current immigration situation (whether they are in removal proceedings or exclusion proceedings or have an outstanding order of removal) and their particular goals (retain their LPR status, apply for naturalization, would like the ability to travel abroad), our attorneys recommend the best course of option available to the client, whether it be attempting to vacate the criminal conviction that renders them removable/inadmissible, seeking relief in removal proceedings or affirmatively applying for benefits (LPR’s can apply for a INA §212(c) waiver defensively in removal proceedings or affirmatively by attempting to readjust their status).