INA 212 (C) Relief For Permanent Residents
Author: NYC Immigration lawyer Alena Shautsova
In the field of US Immigration law, very often the laws are not overwritten when a new law comes into effect. Therefore, if the law is written in a way to allow relief for individuals with eligibility requirements met before a specific date when a new law changes the eligibility requirements, the old law can remain relevant for those who met the eligibility requirements at the time. The most well-known instance of this type of “grandfathering-clause” in US Immigration law is the Reagan amnesty laws. However, they are more common then people give them credit for.
One of the less commonly known laws, the INA 212(c), has been updated through amendments which creates a different eligibility requirement based on when a person’s deportation proceedings commenced. When I bring this up during my consultations, many people will say, “but that was so long ago, who could possibly be subject to the different eligibility requirements nowadays?” Afterward, sometimes, an older family member says “me.” At any time, a permanent resident who committed a crime and was convicted for such crime can be placed in removal proceedings, usually upon arrival to the US. Some of my clients have traveled back and forth on vacation to their home countries for years without problems and all of a sudden they meet with unexpected consequences at the border and a Notice to Appear after they go through the additional screening process with the CBP. If you or a loved one has been placed in removal proceedings for a crime or Immigration violation committed before April 1, 1997, and if cancellation or removal for permanent residents is not available you may qualify for this “old” waiver; it is also available for those whose deportation proceedings began before April 24, 1996.
So the questions that remain are: what is INA 212(c), what does it do, and how can someone be eligible?
What Is INA 212(c) and what does it do?
Relief under 212(c ) helps one to keep their permanent residency. It is available to those who were placed in deportation or exclusion proceedings prior to April 1, 1997. It is mainly helpful to those with aggravated felony convictions. Restrictions on 212(c ) eligibility for aggravated felons does not apply to persons who were in deportation proceedings before April 24, 1996. The amazing part about this waiver is that even if some convictions will happen after April 1, 1996, will still be covered by the waiver. The relevant date to determine INA 212( C) relief eligibility is the date when the guilty plea was reached, not when the judgment of conviction was rendered. For jury rendered verdicts, the relevant date is the date of the sentencing. In Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), the Board of Immigration Appeals held that relief under former INA section 212(c) is also available to otherwise eligible lawful permanent residents, even if they were convicted following a trial before April 1, 1997.
A law that allows for permanent residents that were placed in removal proceedings because of a criminal conviction prior to April 1st, 1997 to avoid deportation. After April 1st, 1997, the Cancellation of Removal replaced this law and eventually opened the doors to people who were not permanent residents to apply for relief if they could prove that they had resided in the US for over 10 years continuously after being placed in removal proceedings. However, when one door opens, sometimes another door closes. What was left out of the new law was the relief for permanent residents who had been placed in removal proceedings for certain aggravated felonies if they could demonstrate various eligibilities.
Who is Eligible for Relief?
Basic Eligibility Requirements for a §212(c) waiver: a person is an LPR with a lawful domicile for at least 7 years; -- 7 years of lawful domicile continued to accrue during exclusion and deportation proceedings until a final order was entered by an IJ or the BIA; a person is not excludable under former INA sections addressing national security and international child abduction; and for convictions entered between 11/30/1990 and 9/30/1996, LPR has not served more than 5 years imprisonment for one or more aggravated felony offenses. The problem with determining 212(c ) eligibility is that the law has been changed so many times, that the election will depend on many factors such as when the person was found guilty, type of the offense, time in incarceration if any.
The following is a list of all possible aggravated felonies that can be waived, but in many cases such as murder, rape, and child pornography, for example, it is not feasible since these aggravated felonies carry minimum sentences that are greater than 5 years.
|1. Murder, Rape, or Sexual Abuse of a Minor||101(a)(43)(A)|
|2. Illicit Trafficking in Controlled Substance||101(a)(43)(B)|
|3. Illicit Trafficking in Firearms or Destructive Devices||101(a)(43)(C)|
|4. Money Laundering Offenses (over $10,000)||101(a)(43)(D)|
|5. Explosive Materials and Firearms Offenses||101(a)(43)(E)(i)-(iii)|
|6. The crime of Violence (imprisonment term of at least 1 yr)||101(a)(43)(F)|
|7. Theft Offense (imprisonment term of at least 1 yr)||101(a)(43)(G)|
|8. Demand for or Receipt of Ransom||101(a)(43)(H)|
|9. Child Pornography Offense||101(a)(43)(I)|
|10. Racketeering, Gambling (imprisonment term of at least 1 yr)||101(a)(43)(J)|
|11. Prostitution Offenses (managing, transporting, trafficking)||101(a)(43)(K)(i)-(iii)|
|12. Gathering or Transmitting Classified Information||101(a)(43)(L)(i)-(iii)|
|13. Fraud or Deceit Offenses or Tax Evasion (over $10,000)||101(a)(43)(M)(i), (ii)|
|14. Alien Smuggling||101(a)(43)(N)|
|15. Illegal Entry or Reentry by Removed Aggravated Felon||101(a)(43)(O)|
|16. Passport, Document Fraud (imprisonment term of at least 1 yr)||101(a)(43)(P)|
|17. Failure to Appear Sentence (an offense punishable by at least 5 yrs)||101(a)(43)(Q)|
|18. Bribery, Counterfeiting, Forgery, or Trafficking in Vehicles||101(a)(43)(R)|
|19. Obstruction of Justice, Perjury, Bribery of Witness||101(a)(43)(S)|
|20. Failure to Appear to Court (an offense punishable by at least 2 yrs)||101(a)(43)(T)|
|21. Attempt or Conspiracy to Commit an Aggravated Felony||101(a)(43)(U)|
Numbers 1-5 are typically not applicable because of the minimum sentencing guidelines, the same goes for 9. However, the guideline calls for 5 years imprisonment served, therefore if by chance a person was convicted for 7.4 years but was released after 4.9 years, the person may be eligible for the 212C waiver.
However, improbable it may sound that you may qualify for this old waiver, it is worth checking to see if the 212(c ) relief may help. The key here would be the timing of the events, and precise dates of guilty plea, trial, etc. Note, special motions to reopen are available for those who may qualify for this relief. If, however, an old order of removal/deportation was reinstated, a person will not be able to file motion to reopen to try to qualify for this relief.
The forms that are used to apply for this relief are I-191 if filed before USCIS, or EOIR-42 if filed before an immigration judge.
If you need help with defense in removal proceedings or an old order of deportation/removal, reserve a confidential consultation by reaching us at 917-885-2261 or by visiting our appointment page: