Reconciling several years worth of inconsistent Federal Court rulings, Board of Immigration Appeals precedent and contrary argument from the defense bar, the United State Supreme Court issued a ruling restoring 212(c) relief to thousands of deportable aliens in the United States. The case, INS, v. St. Cyr, decided June 25, 2001, held that Federal Courts maintain habeas corpus jurisdiction over deportation orders against criminal aliens and that relief remains available to aliens who pleaded guilty to crimes at a time when 212(c) relief would have been available to them. The 212(c) waiver allows lawful permanent residents who are deportable on the basis of criminal convictions to keep their green cards and remain in the United States.
Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) Section 212(c) afforded the Immigration Judges broad discretion to grant waivers of deportation to aliens convicted of crimes in the United States, based on their equities in the United States, such as family ties and personal reformation. In 1996, the relief was first pared back by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which identified a wide set of crimes for which an applicant would be rendered ineligible for 212(c) relief.
When IIRIRA was passed, Congress did one better and repealed 212(c) altogether. Where 212(c) allowed lawful permanent residents of the United States who had resided in the United States lawfully for at least seven years to keep their green cards “in the discretion of the attorney general,” IIRIRA’s “Cancellation of removal” allows a lawful permanent resident of seven years to apply to keep his green card only if he has not been convicted of an “aggravated felony.” Since AEDPA and IIRIRA greatly expanded the field of offenses classifiable as “aggravated felonies,” thousands of lawful permanent residents became ineligible for relief in 1996, even if they became deportable for the offense prior to the change of law in 1996.
Compounding the problem, the IIRIRA amendments to the law barred all judicial review, i.e. Federal Court Appeal, of any final order of removal rendered against the vast majority of criminal aliens. Previously, most final orders of deportation could be appealed to the Federal Circuit Courts, with orders of exclusion being reviewable in the United States District Courts via Writs of Habeas Corpus. The first hurdle in the St. Cyr case was establishing that the Court even had jurisdiction to hear the appeal of an immigrant deportable on criminal grounds. The Supreme Court held that the IIRIRA amendments did not preclude Federal Court review via writs of habeas corpus, even though direct appeal to the Federal Circuit Court was barred.
Having found that Federal Court review remained available pursuant to a writ of habeas corpus, the court held that Section 212(c) relief remains available to aliens whose deportable convictions were obtained on the basis of plea agreements entered into while 212(c) relief would have been available to them. In short, the Court found that the changes in law could not be applied retroactively against immigrants who made pleas when they would have been eligible for 212(c) relief. The Court noted the obvious unfairness in attaching new and harsher consequences to “events completed before the enactment of new law.”
The St. Cyr decision is the latest in a series of blows dealt IIRIRA, which was perhaps the most anti-immigrant piece of legislation passed in the United States since the 19th Century. The decision, however, was made by a sharply divided Supreme Court, with a 5 to 4 vote carrying the day, which makes the state of the law all the more precarious. With the composition of the Supreme Court in question for the near future and the state of Immigration Law in constant flux, consultation with a genuinely competent attorney is absolutely required to determine whether 212(c) or other relief is available to any immigrant facing deportation on criminal grounds.