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212(c) Barred By Non-Drug Aggravated Felonies: Contrary Cases

by Kathy Brady

In the final rule for 212(c) relief published September 28, 2004, the government appears to state that aggravated felonies unrelated to controlled substances may not be waivable under 212(c), because there is no specific "aggravated felony" ground of inadmissibility. See 69 Fed Reg 57831-2 creating 8 CFR 1212.3(f)(5), and discussion in Werlin, "AILF Practice Advisory -- 212(c) Regulations" 10/19/04) at pp 4-5.

We should point out to the government that this is not how 212(c) has been interpreted by the courts. Law student Paul Tran compiled the following list of recent federal decisions in which a non-drug related (and non-firearms related) aggravated felony conviction either was accorded 212(c) treatment, or would have been accorded such treatment except for other legal issues unrelated to the lack of an "aggravated felony" inadmissibility ground.

Chambers v. Reno, 307 F. 3d 284 (4th Cir. 2002, MD)

Facts: Defendant, from Jamaica, was convicted by trial of armed robbery with a deadly weapon, an offense that was made an aggravated felony under IIRIRA. IJ denied Defendant relief under 212(c).

Held: Court held that 212(c) under St. Cyr was not available because the conviction was pursuant to a trial, not guilty plea.

US v. Ortega-Ascanio, 376 F. 3d 879 (9th Cir. 2004, CA)

Facts: Defendant convicted of sexual battery.

Held: The Court applied the St. Cyr test and provided that since the IJ did not inform Defendant of eligibility to apply for discretionary relief 212(c), the IJ violated Defendantís due process rights. Remanded.

US v. Leon-Paz, 340 F. 3d 1003 (9th Cir. 2003, AZ)

Facts: Defendant, from Mexico, was found guilty of first degree burglary. IJ stated that Defendant was ineligible for relief under 212(c).

Held: The Court held that IJís advice was not correct. When Leon pled guilty to first degree burglary in 1995 and received a four-year-prison sentence, 212(c) waived aggravated felonies and he could rely on obtaining 212(c) relief even if the conviction became an aggravated felony in the future due to a retroactive application of law. Reversed and Remanded.

U.S. v Velasco-Medina, 305 F.3d 839 (9th Cir. 2002)

Facts: Defendant convicted of burglary

Held: Defendant ineligible for 212(c) relief because at the time he pled guilty in the summer of 1996, the AEDPA bar to waiving 212(c) for an aggravated felony already had come into effect. The subsequent change in the definition of aggravated felony by IIRIRA, which caused his conviction to be classed as an aggravated felony, was properly retroactively applied.

Adefami v. Ashcroft, 358 F. 3d 828 (11th Cir 2004, FL)

Facts: IJ found Defendant, a Nigerian, guilty of theft offenses that were waivable under 212(c) but found that an apparent conviction based on a traffic ticket was for a firearms offense and was a bar to 212(c).

Held: Court found there was no firearms conviction and held in FN 1 that even if the theft convictions were aggravated felonies, they were waivable under 212(c). Reversed.

Cunningham v. US Atty. Gen., 335 F. 3d 1262 (11th Cir. 2003, FL)

Facts: Defendant convicted of possession of counterfeitóan aggravated felony.

Held: Because the counterfeit conviction occurred before the new INA enacted, 212(c) available.

About The Author

Katherine Brady is a senior staff attorney at the Immigrant Legal Resource Center in San Francisco. Katherine Brady can be reached at the Immigrant Legal Resource Center by phone: 415/255-9499, ext 272, fax: 415/255-9792, or email:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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