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212(c) Relief and Retroactivity

IDP has supported efforts to limit retroactive application of new restrictions on the rights of noncitizens, especially the elimination in 1996 of discretionary relief from removal under INA s 212(c) for noncitizens who would have been eligible for that relief prior to its repeal.

Key Retroactivity Cases

INS v. St. Cyr, 533 U.S. 289 (2001)

Earlier efforts culminated in a landmark victory in  INS v. St. Cyr, in which the U.S. Supreme Court held that 212(c) relief remains available to lawful residents who pled guilty to deportable offenses prior to its repeal. (For the brief filed by IDP and amici in that case, click here).  More recently, IDP has supported litigants seeking to overcome the government’s restrictive interpretation of the St. Cyrdecision.

Judulang v. HolderNo. 10-694 (2011)

On December 12, 2011, the U.S. Supreme Court issued an important decision further protecting the rights of immigrants under the St. Cyr decision. In Judulang v. Holder, No. 10-694, the Supreme Court unanimously held that the government’s policy for deciding when lawful permanent resident immigrants may apply for 212(c) relief from deportation for pre-1996 guilty plea convictions—deeming such immigrants ineligible for relief if the deportation ground at issue does not have a sufficiently comparable inadmissibility ground—was arbitrary and capricious in violation of the Administrative Procedure Act. The Court remanded the case for the government to adopt a new approach that does not arbitrarily deny long-term permanent resident immigrants such as Mr. Judulang from being able to apply for relief from deportation.

Mr. Judulang was represented pro bono by Mark Fleming of the law firm of Wilmer Hale. IDP provided immigration law support and coordinated amicus briefing submitted by national criminal justice organizations in support of Mr. Judulang’s position and prepared pro bono by the law firm of Jenner and Block. For a practice advisory entitled “Implications of Judulang v. Holder for LPRs Seeking 212(c) Relief and for Other Individuals Challenging Aribitrary Agency Policies” (prepared by IDP along with the National Immigration Project, American Immigration Council and NYU Clinical Law Professor Nancy Morawetz), click here.

Vartelas v. Holder, No 10-1211 (2012)

And, on March 28, 2012, the U.S. Supreme Court issued another important retroactivity decision protecting the rights of immigrants with long ago criminal convictions to travel abroad without risking detention and removal upon their return.  In Vartelas v. Holder, No 10-1211, the Supreme Court struck down the government’s retroactive application of a 1996 immigration law amendment that the government said allowed denial of re-admission and removal of lawful permanent residents who take short trips abroad even if their old convictions preceded the new law.  Such retroactive application of the 1996 amendment subjected immigrants with relatively minor offenses—many of whom were not deportable while inside the U.S.—to detention and removal simply because they needed to travel to attend a funeral, visit a sick family member, or otherwise attend to family or other emergent business abroad.  The Court’s ruling in this case may also favorably affect the ability of immigrants to challenge retroactive application of other harsh immigration law amendments.

Mr. Vartelas was represented pro bono by the University of Pennsylvania Law School Supreme Court Clinic (Stephanos Bibas, Counsel of Record).  IDP provided immigration law support and coordinated amicus briefing submitted by national criminal justice and criminal-immigration law expert organizations in support of Mr. Vartelas’ position and prepared pro bono by the law firm of Gibson Dunn & Crutcher (David Debold, Counsel of Record).  Read the practice advisory entitled “Vartelas v. Holder: Implications for LPRs Who Take Brief Trips Abroad and Other Potential Favorable Impacts” (prepared by  IDP along with the National Immigration Project,  American Immigration Council and NYU Clinical Law Professor Nancy Morawetz).

Matter of Abdelghany26 I&N Dec. 254 (BIA 2014)

Then, on February 28, 2014, the Board of Immigration Appeals issued Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), in which the Board ruled that a lawful permanent resident immigrant who has accrued 7 consecutive years of lawful domicile in the U.S. may seek a waiver of removal for most deportable criminal offenses if the plea or conviction was entered before April 24, 1996 (or, in certain limited cases, before April 1, 1997). As a result of this decision, such long-time permanent resident immigrants should be able to seek waivers under former Immigration and Nationality Act Section 212(c) so long as the conviction or convictions in question do not fall within certain national security or international child abduction grounds, and are not aggravated felony convictions entered after November 29, 1990 for which the person served 5 years or more in prison in the aggregate.

This decision overrules prior BIA decisions that had held that immigrants could not seek such waivers of deportation for several categories of deportable offenses that lacked substantially equivalent statutory counterparts in the criminal inadmissibility grounds. See, e.g., Matter of Blake, 23 I&N Dec. 722 (BIA 2005), and Matter of Brieva, 23 I&N Dec. 66 (BIA 2005) (relating to certain aggravated felony categories). The decision also abrogates a Justice Department regulation that had declared 212(c) relief unavailable to those convicted after trial, and rules that an immigrant may now seek such relief without regard to whether the relevant conviction resulted from a plea agreement or a trial. The decision relies in large part on the recent U.S. Supreme Court decisions in Judulang v. Holder, 132 S. Ct. 476 (2011), and Vartelas v. Holder, 132 S. Ct. 1479 (2012).

IDP and pro bono counsel Mark Fleming of Wilmer Hale (attorney for the petitioner in Judulang) provided assistance to the American Immigration Lawyers Association (AILA) in the development of the amicus curiae brief submitted by AILA arguing for the relief granted by the BIA in this case. For a practice advisory on the implications of Matter of Abdelghany for lawful permanent residents seeking 212(c) relief from removal for pre-1996/1997 plea agreements/trial convictions, see Practice Advisory (with Sample Motion to Reconsider with the BIA) prepared by IDP with the National Immigration Project.

Other Retroactivity Cases

  • Taylor v. Holder (Fourth Circuit: December 2012). IDP joined the National Immigration Project of the National Lawyers Guild in filing this amicus brief arguing that the federal government is wrong to apply retroactively the cancellation of removal eligibility “clock-stop” rule – enacted by Congress in 1996 – to pre-1996 criminal conduct.  Under the clock-stop rule, an applicant for cancellation of removal must show that he or she has continuously resided in the U.S. for seven years prior to commission of certain offenses triggering deportability.  The brief argues that the U.S. Supreme Court’s decisions in Vartelas v. Holder and Judulang v. Holder preclude the government from continuing to apply this rule retroactively to pre-1996 offenses.
  • Ferguson v. Holder (U.S. Supreme Court: October 2009). IDP filed this amicus brief along with the Immigrant Legal Resource Center, the National Immigration Project of the National Lawyers Guild, and the National Association of Criminal Defense Lawyers, in support of a petition asking the Supreme Court to grant review in this case challenging the refusal of the U.S. Court of Appeals for the Eleventh Circuit to extend to individuals convicted after trial the protection of the Supreme Court decision in INS v. St. Cyr.
  • Bell v. Ashcroft (Second Circuit: May 2004). IDP, with the National Association of Criminal Defense Lawyers, submitted an amicus brief in Bell v. Ashcroft to address the question of whether the 2001 Supreme Court decision in INS v. St. Cyr requires that the Second Circuit revisit the question of whether 1990 immigration law amendments barring relief from deportation for persons convicted of aggravated felonies for which they served more than five years in prison should be applied to individuals who agreed to plead guilty to deportable offenses prior to the 1990 amendments.  Amici were represented by Paul A. Engelmayer and Verity Winship of Wilmer, Cutler & Pickering LLP.
  • Ponnapula v. Ashcroft (Third Circuit: November 2003). In Ponnapula v. Ashcroft, 373 F.3d 480 (3rd Cir. 2004), the Third Circuit Court of Appeals extended to individuals who were convicted after trial the Supreme Court decision in INS v. St. Cyr, which held that 1996 immigration law amendments barring relief from deportation should not be applied to individuals who agreed to plead guilty to deportable offenses prior to the amendments.  IDP, with the National Association of Criminal Defense Lawyers, had submitted a brief in Ponnapula urging such extension.  IDP and NACDL were represented by Paul A. Engelmayer, Christopher J. Meade and Katherine R. Goldstein of Wilmer, Cutler & Pickering LLP.
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