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February 1, 2001

Department of Justice Publishes Final Rule to Restore Eligibility for 212(c) Criminal Waiver to Certain Lawful Permanent Resident Aliens

The Department of Justice published in the Federal Register on January 22, 2001, a final rule which reinstates a discretionary form of relief for eligible lawful permanent residents whose criminal convictions subject them to deportation from the United States. Until 1996, lawful permanent residents with at least 7 years of residence could, with a few exceptions, seek a waiver of their criminal convictions in deportation proceedings under section 212(c) of the Immigration and Nationality Act (INA). In considering a grant of relief under section 212(c), the immigration judge would weigh negative factors such as the severity of the crime against positive factors including rehabilitation and ties to the community.

Congress sharply curtailed the availability of the section 212(c) waiver in 1996. Amendments to the INA by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) barred most classes of criminals from seeking a section 212(c) waiver.

Because AEDPA did not have a provision specifying its effective date, the amendments went into effect on April 24, 1996, the date of AEDPA's enactment. The lack of an effective date provision, however, left it unclear whether the bars to section 212(c) eligibility should apply to cases already pending before the immigration courts on the date of AEDPA's enactment.

In a 1997 immigration case, Matter of Soriano, the Attorney General concluded that AEDPA's amendments restricting section 212(c) relief were intended to be applied to all deportation cases, including those already pending before an immigration judge or the Board of Immigration Appeals (Board) on the date of AEDPA's enactment. Since that decision, a majority of circuit courts have disagreed with this conclusion, though for different reasons, some in conflict with others. As a consequence, a variety of different rules now apply depending on the judicial circuit in which the deportation proceeding arises.

The final rule published in the Federal Register (at 66 FR 6436) restores uniformity nationwide - to the extent possible - with respect to the availability of section 212(c) relief. The rule allows aliens with deportation proceedings already pending at the time of AEDPA's enactment to have their applications considered by an immigration judge or the Board under section 212(c) as it existed prior to amendment by AEDPA. The rule would affect only cases initiated prior to April 24, 1996.

This rule also provides a 180-day period for certain aliens who were adversely affected by the Soriano decision to file a motion to reopen their cases in order to apply for section 212(c) relief, provided they have not already departed or been deported from the United States. The effective date of the rule is January 22, 2001, and is not subject to the regulatory postponement directed by the Bush Administration on January 20, 2001. The deadline for aliens to file for relief under this rule is Monday, July 23, 2001. [This date was initially printed incorrectly as June 23, 2001, but the Federal Register published the correction on January 29, 2001.] In addition to reinstating section 212(c) relief, this final rule makes technical amendments to a regulation published (at 64 FR 56135) on October 18, 1999, changing section numbers of rules relating to the streamlining authority of the Board.

A copy of the final rule is posted in the Virtual Law Library on EOIR's Web site Questions may be directed to Carolyn Piccotti in EOIR's Office of the General Counsel at 703-305-0470.


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