U.S. Supreme Court Rules on 212(c) Waivers
Posted Jul 13, 2001

On June 25, 2001, the U.S. Supreme Court issued a decision in INS v. St. Cyr. One of the issues the Court examined was the continued availability of § 212(c) of the Immigration and Nationality Act (INA) for immigrants in removal proceedings. Although The Law Office of Sheela Murthy does not handle removal cases, we recognize the fact that this issue may apply to some of our MurthyBulletin subscribers.

Section 212(c) of the INA provided the Attorney General broad discretion to waive deportation of lawful permanent residents (LPRs) who were convicted of certain offenses, including those involving moral turpitude or the illicit traffic in narcotics. In 1996, the large class of foreign nationals depending on § 212(c) was reduced by § 401 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 (AEDPA). Thereafter, § 212(c) was repealed by § 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208 (IIRAIRA). Under IIRAIRA, § 212(c) and suspension of deportation relief was changed to cancellation of removal. 

For LPRs, cancellation of removal may be granted if the LPR has seven years of continuous residence in the U.S., of which five years must be in LPR status, and has not been convicted of any aggravated felony. For non-LPRs, cancellation of removal requires continuous physical presence and good moral character for 10 years, and a showing of exceptional and extremely unusual hardship to the foreign national's spouse, parent, or child, who is a U.S. citizen or LPR. In addition, non-LPRs must not have been convicted of any of the criminal and related grounds enumerated in INA § 212(a)(2) or the criminal and document offenses listed in § 237(a)(2) and § 237(a)(3). However, there are special rules for battered spouses and children.

In St. Cyr, the Supreme Court held that people who had pled guilty to a deportable offense at a time when they may have been eligible for relief under § 212(c) continue to be eligible for the § 212(c) waiver. This is true whether the guilty plea was before the enactment of AEDPA or thereafter, and even if they later were placed in removal proceedings. The Court concluded that IIRAIRA could not be applied retroactively because its language does not specifically require that result. There is no mention of the effect of the statute on proceedings based on pre-IIRAIRA convictions that are commenced after the statute's effective date. According to the Court, IIRAIRA's elimination of § 212(c) relief for those who entered into plea agreements expecting that they would be eligible for such relief, unfairly attaches new consequences to old conduct. 

The benefit of a waiver under § 212(c) is significant. From 1989 to 1995 alone, § 212(c) relief was granted to over 10,000 foreign nationals. (Of course, this was a relatively small percentage of the number who applied. Approval was far from automatic - it was necessary for the judge to be convinced, based upon the evidence, that the person deserved another chance.) If the Court permitted IIRAIRA to be applied retroactively, it would be contrary to the important legal principles of fair notice, reasonable reliance, and settled expectations. In its decision, the U.S. Supreme Court made no mention as to whether there is any relief for individuals who have already been deported due to IIRAIRA being applied retroactively.