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Chart: Eligibility for Waiver in Removal Proceedings Under the Former INA 212(c), Pursuant to Judulang v. Holder [1]

by Katherine Brady for the Immigrant Legal Resource Center

Type of Charge; Date of Conviction
What Conviction/s Can Be Waived
Deportability Charge Based on pre-4.26.96 Guilty Plea On remand it is likely that 212(c) will be held available to waive any deportation charge based on a conviction that also would have formed a basis for "exclusion" (inadmissibility), including, e.g., conviction of an aggravated felony or firearms offense that also causes inadmissibility under the moral turpitude ground. Advocates can argue that convictions that cause deportability but not inadmissibility - e.g., a conviction for simple possession of a firearm - also are waivable under the reasoning of Judulang. See Vargas et al, "Practice Advisory"[2]
Deportability Charge Based on Guilty Plea Between 4.24.96 and 4.1.97 On remand it is likely that the above rule will apply, except that 212(c) may be held not available to waive deportation grounds specified in the 1996 AEDPA. The specified grounds include: conviction of an aggravated felony, controlled substance offense, firearms offense, or "miscellaneous" deportation ground offense (sabatoge, treason, etc.); conviction of two crimes involving moral turpitude, both of which carry a potential sentence of a year or more; and deportability for drug abuse/addiction.
Inadmissibility Charge Based on Guilty Plea Before 4.1.97 The Judulang decision should not change the fact that 212(c) is available to waive any inadmissibility ground based on a conviction from before 4.1.97. (AEDPA's limits on waiver of "specified grounds" referred to deportation grounds only.)[3]
Exception: Served Five Years for One or More Agg. Felonies Section 212(c) is not available where one or more aggravated felony convictions, received on or after November 29, 1990, result in actual time served of five years or more.[4]
Remaining Questions What specific rule will be set out upon remand? What will happen to persons with a final order, or already deported/removed, who should have been found eligible? Under what circumstances will conviction by jury be subject to 212(c)? See Advisory.2


1Judulang v. Holder, 132 S.Ct. 476 (Dec. 12, 2011). This Chart was written by Kathy Brady of ILRC, with input from Manny Vargas and Zach Nightingale, as well as the below Practice Advisory.
2See Vargas, Morawetz, Realmuto, Kesselbrenner, and Werlin, "Practice Advisory: Implications of Judulang v. Holder for LPRs seeking 212(c) Relief and for Other Individuals Challenging Arbitrary Agency Policies" (Dec. 16, 2011) at
3See, e.g, discussion in Matter of Azurin, 23 I&N Dec. 695 (BIA 2005) and in Brady et al., Defending Immigrants in the Ninth Circuit (, 11.1(B), (C).
4See, e.g., discussion in Toia v. Fasano, 334 F.3d 917 (9th Cir. 2003).

Immigrant Legal Resource Center,

About The Author

Katherine Brady a Senior Staff Attorney at the Immigrant Legal Resource Center, where she has worked since 1987. Her expertise includes the immigration consequences of criminal convictions; issues affecting immigrant children and mixed families; immigration consultant and consumer fraud; naturalization; family immigration; legal status for immigrant victims of domestic violence through the Violence Against Women Act provisions (VAWA); and trial skills. She is the primary author of Defending Immigrants in the Ninth Circuit (formerly California Criminal Law and Immigration), and for many years was co-author of the section on defending noncitizens in the CEB manualCalifornia Criminal Law: Procedure and Practice. Several downloadable articles of hers appear at She also is a co-author of the ILRC's Special Immigrant Juvenile Status and the Immigration Benchbook for Juvenile and Family Courts. She has helped found coalitions and projects to address these issues, including serving as a co-founder of the Defending Immigrants Partnership and the Immigrant Justice Network. She authored briefs in key Ninth Circuit cases on immigration and crimes. In 2007, she received the Carol King award for advocacy from the National Immigration Project of the National Lawyers Guild. . She is currently a Commissioner to the ABA Commission on Immigration.

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