212(c) Waivers
Former section 212(c) of the Act provides that an alien lawfully admitted for permanent residence who temporarily proceeds abroad voluntarily and not under an order of deportation, and who is returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted to the United States in the discretion of the Attorney General despite the applicability of certain grounds of exclusion specified in INA § 212(a). See Form 1-191 "Application for Advance Permission to Return to Unrelinquished Domicile" which may be useful in such circumstances.
This waiver was expanded to also be available to lawful permanent residents who did not proceed abroad, but risked losing their LPR status due to charges of deportability or removability. See Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976). However, section 212(c) relief applies only to charges of deportability or removability for which there are comparable grounds of exclusion or inadmissibility. 8 C.F.R. § 1212.3(f)(5); Matter of Hernandez-Casillas, 20 I. & N. Dec. 262 (BIA 1990; A.G. 1991); see, e.g., Matter of Wadud, 19 I. & N. Dec. 182 (BIA 1984); Matter of Granados, 16 I. & N. Dec. 726 (BIA 1979).
On November 29, 1990, the Immigration Act of 1990 (“IMMAct”) amended section 212(c) to ban aggravated felons from applying for relief under § 212(c) if they had served a term of imprisonment of at least five years. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. On April 24, 1996, section 212(c) was amended by section 440(d) of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which further reduced the class of aliens eligible for relief from removal. Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214. Section 440(d) of AEDPA made the following classes of aliens ineligible for § 212(c) relief: (1) aggravated felons; (2) those convicted of controlled substance offenses; (3) those convicted of firearm offenses; (4) those convicted of certain miscellaneous crimes, such as espionage; and (5) those convicted of multiple CIMTs. AEDPA § 440(d); see also INA § 212(c) (1995). Section 212(c) was subsequently repealed by section 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”).
In 2001, the United States Supreme Court rendered a decision in INS v. St. Cyr, holding that section 212(c) relief remains available to aliens, irrespective of when they were put into proceedings, if their “convictions were obtained through plea agreements [prior to April 1, 1997] and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect.” INS v. St. Cyr, 533 U.S. 289, 326 (2001). Employing the retroactivity analysis formulated in Landgraf v. USI Film Products, et al, 511 U.S. 244 (1994), the Supreme Court in St. Cyr determined that section 304(b) of IIRIRA, when applied to aliens who had entered into plea agreements in reliance on the availability of such relief, caused an impermissible retroactive effect. Id. Thus, section 304(b) of IIRIRA could not be applied retroactively in such cases. Id.; see also 8 C.F.R. §§ 1003.44, 1212.3, 1240.1.