Are you a permanent resident with a final order of deportation because of one or more criminal convictions dating from April 1, 1997, or earlier? If so, you have until April 26, 2005 to submit a motion to reopen your case and apply for possible relief from deportation under section 212(c) of the Immigration and Naturalization Act (INA).

What is a section 212(c) relief from deportation, and what happened to this law?

INA section 212(c) provided a way for certain permanent residents with criminal convictions to remain in the United States after being ordered to leave the country. The criteria residents had to meet to apply to stay in the country have been changed several times over the years, getting harder each time. It was revoked entirely when the Immigrant Responsibility Act of 1996 (IIRIRA) was enacted. It was replaced by “cancellation of removal” under INA section 240A(a) as of April 1, 1997.

The main difference between relief under section 212(c) and relief under section 240A(a) is that cancellation of removal is not available to permanent residents who have been convicted of “aggravated felonies” as defined by the INA in section 101(a)(43). After IIRIRA was passed, certain crimes that could be “waived” under section 212(c) were classified as “aggravated felonies.” Today, permanent residents convicted of these aggravated felonies have no relief from deportation.

When the law passed, it was set up to have retroactive effect. That means that, even if the criminal conviction took place before 1997, the new law would affect it.

What changed?

Section 212(c) relief was made available again after a landmark decision by the Supreme Court in a case called INS v. St. Cyr. In 2001, the Supreme Court held that the 1997 IIRIRA does not retroactively apply to convictions that happened before IIRIRA was passed.

However, if you are or were a permanent resident who was placed in immigration proceedings at any time between April 1, 1997, and the 2001 Supreme Court's decision in St. Cyr, you may well be subject to a final order of deportation, exclusion, or removal. In that event, you may now try to reopen your case and proceed with a “special motion to seek section 212(c) relief.” The deadline for filing the motion is April 26, 2005.

Deadline Applies Only to Motions to Reopen Cases

Please note that this deadline applies only to motions to reopen cases and does not apply to getting relief in any new or pending cases. If you are a permanent resident and are newly placed in deportation proceedings (or have a proceeding now pending) for convictions that pre-date IIRIRA, you may be able to apply for relief under the version of section 212(c) that was in effect at the time of your conviction. The deadline does not apply in these cases. It is important to remember that the criteria for relief under 212(c) changed over the years, and whether you may be able to obtain relief from deportation depends entirely on the date of your conviction or the date your guilty plea was entered.

What conditions do I need to satisfy in order to proceed with a special motion to reopen my case under section 212(c)?

• You must be or have been a legal permanent resident (LPR) until you received a final order of deportation or removal.

• You must have pleaded guilty to an offense for which you became deportable or removable, and the plea agreement must have been made before April 1, 1997. The Court of Appeals for the Third Circuit, which includes New Jersey, has held that, even in cases where convictions resulted from court trials (that is, not just plea agreements), section 212(c) relief should be made available. (Please note that if you do not reside in the Third Circuit, according to the regulation published by the Department of Homeland Security, the current availability of 212(c) relief encompasses only convictions resulting from plea agreements and not from trials.)

• You must have lawfully lived in the United States for seven consecutive years prior to the date of the final order of deportation or removal.

• You must have been otherwise eligible to apply for section 212(c) relief at the time the plea was made, as follows:

  • If your conviction occurred before November 29, 1990, you are eligible to apply even if you served a sentence of more than five years for an aggravated felony.

  • If your conviction occurred between November 29, 1990, and April 24, 1996, to be eligible, you must have served a term of less than five years if the conviction was for an aggravated felony.

  • The most restrictive rules for section 212(c) apply between April 24, 1996, and April 1, 1997. You are not eligible if you were convicted of certain controlled substance offenses, certain firearms offenses, espionage or treason, or two or more crimes involving moral turpitude committed within five years after entry into the United States , and for which the sentence was one year or longer.

If you think that you may be eligible to proceed with a special motion to reopen your deportation case under section 212(c) or would like further information, please call LSNJ-LAW™, Legal Services of New Jersey's statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529) and ask to speak to an Immigration Representation Project staff member.

This article appeared in the January-February 2005 edition of Looking Out for Your Legal Rights ®.