As a result of several recent momentous defeats in court, the Department of Justice (DOJ) and the Immigration and Naturalization Service (INS) has been forced to change its policies of denying all relief from deportation to immigrants convicted of certain criminal offenses. Despite fierce resistance from the INS, the 9th Circuit Court of Appeals in Magana-Pizano v. INS and 1st Circuit Court of Appeals in Mattis v. Reno decided that under certain circumstances an immigrant’s constitutional rights are violated if denied discretionary relief under the provisions of a section of immigration law formerly known as 212 (c). These decisions highlight and reinforce the constitutional guarantees of all residents including those who have resided in the United States lawfully for decades.
Under former Section 212 (c) of the Immigration and Nationality Act, the Attorney General was authorized among other things to waive the deportability of legal permanent residents who had committed certain crimes including drug-related offences if they had not served a sentence of five years or more and had lived in the United States for at least seven years. However, with the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) on April 24, 1996 congress eliminated discretionary relief from deportation pursuant to Section 212 (c). The INS took the untenable position that the section of AEDPA eliminating 212 (c) relief was retroactive, meaning that it applied to deportation cases pending on or before April 24, 1996. As a result, thousands of legal permanent residents who relied on the law and their attorney’s advice and pled guilty or no contest to crimes for which there was relief under 212 (c) were suddenly deportable without any relief available.
Yet, in ensuing litigation, these legal permanent residents and other immigrant rights organizations challenged the unconstitutionality of the INS policy denying 212 (c) relief retroactively. The courts agreed and held that the retroactive application of AEDPA eliminating 212 (c) is impermissible if the immigrant makes a factual showing that his guilty or no contest plea was entered in reliance on the availability of 212 (c) discretionary waiver. The courts wisely noted that an immigrant charged with a crime would factor the immigration consequences of conviction in deciding whether to plead or proceed to trial. It is not implausible that the immigrant decided to plea guilty in order to avoid a costly or psychologically draining defense knowing that he would be eligible for a waiver of deportation. For the INS to suddenly change the rules would not only be unjust but also an impermissible retroactive application of the law.
Consequently, those immigrants ordered deported or currently in deportation proceedings as a result of certain criminal conviction(s) may be eligible for relief. If the deportation order has become final, the immigrant should file a motion to reopen as soon as possible. To see whether you qualify for this type of relief we urge you to consult an attorney or other licensed immigration practitioner experienced in this area of law.
