Criminal Defense of Immigrants

 

(E)  The Five-Year Bar.  The bar to § 212(c) for those who served five years actual imprisonment for a single aggravated felony is applicable only to convictions occurring after November 29, 1990.[1]  The Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, on December 12, 1991, altered this provision to bar relief if the noncitizen was convicted of one or more aggravated felonies and served an aggregate sentence for those convictions of five years or more of actual custody.  Prior to St. Cyr, the five-year bar had been imposed retroactively against convictions entered prior to the effective date of the legislation creating the bar.[2]  In light of St. Cyr, however, the five-year bars should no longer apply to pleas entered prior to their respective creation in 1990 or 1991.[3]  The courts should apply the law in effect at the time of the plea.[4]

 

At least one court has held that a conviction need not have been an aggravated felony at the time of the conviction to trigger the five-year bar, as long as the conviction would currently be considered an aggravated felony.[5]

 

A noncitizen remains eligible for § 212(c) relief until the five years have actually been served.[6]  The date used to determine whether five years have been served is the date on which the immigration court is asked to order deportation.[7]  The courts are split on whether a noncitizen erroneously denied § 212(c) relief before actual service of five years in custody has occurred can obtain the relief in a new hearing after serving five years.[8]  One court has erroneously applied the definition of “term of imprisonment or sentence” in INA § 101(a)(48)(B) (including a suspended sentence) to the determination of whether the noncitizen actually served five years in custody.[9]

 

One court has held that pre-trial custody is not to be counted toward the five-year bar.[10]  Other courts have held that where a person received credit, against the sentence imposed, for presentence criminal confinement, that time counted towards the five-year actual time served bar to eligibility for 212(c) relief.[11]  Arguably, at least within the Ninth Circuit, any sentence served on account of a sentence enhancement should not apply to the five years.[12]  The Sixth Circuit has found § 212(c) relief barred to a noncitizen who served five years, even though his sentence was later vacated as legally invalid and a sentence of under five years imposed.[13]  This decision is inconsistent with the whole body of law concerning the effect of an order vacating a conviction as legally invalid.  See § § 11.3-11.8, infra; N. Tooby, Post-Conviction Relief for Immigrants (2004).

 

New Regulations:  The new regulations make no distinction for noncitizens who entered a plea agreement between November 29, 1990 and December 12, 1991.  Instead the regulations apply the aggregated five-year bar added in December 12, 1991 to all plea agreements, even those between November 29, 1990 and December 12, 1991, before the aggregated five-year bar had been added to the statute.[14]  This retroactive application of the 1991 expansion of the five-year bar improperly disturbs settled expectations in violation of the reasoning of St. Cyr.  Under the new regulations, the five-year bar does not apply to plea agreements made prior to November 29, 1990.[15]

 

[1] Immigration Act of 1990, supra.  Alexandre v. U.S. Attorney Gen., 452 F.3d 1204 (11th Cir. Jun. 20, 2006) (recognizing that the five-year bar does not apply to pre-IMMACT 90 convictions).

[2] Buitrago-Cuesta v. INS, 7 F.3d 291, 293-296 (2d Cir. Oct. 13, 1993) (the five-year bar to § 212(c) relief, created by § 511(a) of the Immigration Act of 1990, applies retroactively to convictions and sentences served prior to its effective date); Haye v. Ashcroft, No. CIV.A.3:01-CV-414 CF (unpublished) (D.Conn. Dec. 10, 2002).

[3] Toia v. Fasano, 334 F.3d 917 (9th Cir. June 30, 2003) (five-year bar does not apply to noncitizens who pleaded guilty prior to enactment of the Immigration Act of 1990); De Cardenas v. Reno, 278 F.Supp.2d 284 (D. Conn. Aug. 8, 2003) (five-year bar may not be retroactively applied to noncitizens who pleaded guilty prior to statute’s enactment; where Immigration Court delay and other errors rendered petitioner ineligible for § 212(c) relief, habeas corpus is appropriate).  But see Reid v. Holmes, 323 F.3d 187 (2d Cir. Mar. 21, 2003) (refusing to reconsider prior decision after St. Cyr had been decided).

[4] Moreno-Cebrero v. Gonzales, 485 F.3d 395 (7th Cir. May 10, 2007) (“If we are to be consistent in applying § 212(c) as it existed prior to IIRIRA, as St. Cyr dictates for persons in Moreno’s situation, we should not use a definition that was not then part of the statute. Cf. Valere, 473 F.3d at 761-62 (applying the law applicable at the time of petitioner’s guilty plea in finding him ineligible for § 212(c) relief).”).

[5] Brown v. Ashcroft, 360 F.3d 346 (2d Cir. Mar. 3, 2004).

[6] Matter of Ramirez-Somera, 20 I. & N. Dec. 564 (BIA 1992); Gomes v. Ashcroft, 311 F.3d 43 (1st Cir. Nov. 12, 2002) (INA § 212(c), 8 U.S.C. § 1182(c) relief precluded where respondent had served five actual years in custody by the time the BIA decided appeal, even though he had served less than five years when he appeared before the Immigration Judge); Reid v. Holmes, 323 F.3d 187 (2d Cir. Mar. 21, 2003); Hartman v. Elwood, 255 F.Supp.2d 510 (E.D.Pa. Apr. 4, 2003) (time spent in custody after erroneous denial of § 212(c) relief does not count toward five years actual custody for purposes of barring § 212(c) relief); Martinez v. Ashcroft, 236 F.Supp.2d 360 (S.D.N.Y. Dec. 13, 2002) (time served in prison after an initial erroneous BIA decision retroactively applying AEDPA to deny relief did not count toward five-year bar where initial erroneous decision was reached before noncitizen had served five years).

[7] Velez-Lotero v. Achim, 414 F.3d 776 (7th Cir. July 11, 2005) (noncitizen was ineligible for relief under former INA § 212(c), 8 U.S.C. § 1182(c), under pre-IIRAIRA law, because at the time he applied for relief he had served more than five years in prison on an aggravated felony conviction); Torres-Rascon v. Heston, 339 F.3d 633 (8th Cir. July 3, 2003) (noncitizen ineligible for § 212(c) relief if convicted of aggravated felonies for which s/he served more than five years in prison by the time s/he was subjected to removal proceedings and requested the waiver); Davis v. Ashcroft, No. 01 CIV. 6228(DLC) (S.D.N.Y. Feb. 10, 2003) (unpublished) (time served in prison on a conviction is computed as of the date of the decision to order deportation, for purposes of the five-year sentence served bar to § 212(c) relief).

[8] Compare Pereira v. Gonzales, 417 F.3d 38 (1st Cir. July 21, 2005) (noncitizen who had not yet served five years in prison when his § 212(c) application was initially denied, in error, on the basis of Matter of Soriano, is again not eligible for § 212(c) relief, since he had served five years in prison by the time the BIA issued a final decision correcting the Soriano error); Nguyen v. District Director, Bureau of Immigration and Customs Enforcement, 400 F3d 255 (5th Cir. Feb. 9, 2005) (no due process violation where noncitizen applied for § 212(c) relief, was denied relief based upon a misapplication of law, but then subsequently became barred for § 212(c) relief by serving more than five years for an aggravated felony offense), with Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (nunc pro tunc relief is appropriate for noncitizens who were improperly denied relief under § 212(c), prior to INS v. St. Cyr, but subsequently became ineligible for relief under § 212(c) upon accruing five years aggregate imprisonment; imprisonment period should be measured as of the date of the application for relief in immigration court).

[9] Reid v. Holmes, 323 F.3d 187 (2d Cir. Mar. 21, 2003) (service of five years in prison precluded noncitizen from eligibility to apply for a waiver of deportation under § 212(c)); cf. Moreno-Cebrero v. Gonzales, 485 F.3d 395 (7th Cir. May 10, 2007) (“In calculating the term of imprisonment for § 212(c) waivers, courts of appeals have looked to the time of actual incarceration, rather than the nominal sentence ordered by a court. . . . We need not decide here whether that is the appropriate point of reference, since the outcome of Moreno’s petition is the same whether we look at actual time behind bars or the sentence pronounced in court.”), citing Elia v. Gonzales, 431 F .3d 268, 274 (6th Cir. July 22, 2005) (“Determining whether imprisonment has made an alien ineligible for § 212(c) relief ‘turns not on the sentence imposed but on the period of actual incarceration.’”), quoting United States v. Ben Zvi, 242 F.3d 89, 99 (2d Cir. 2001); United States v. Ben Zvi, 242 F.3d 89, 99 (2d Cir. 2001) (five-year eligibility bar “turns not on the sentence imposed but on the period of actual incarceration”); Greenidge v. INS, 204 F.Supp.2d 594, 600 (S.D.N.Y. 2001).

[10] Restrepo v. McElroy, 354 F. Supp. 2d 254 (E.D.N.Y. Feb. 18, 2005) (respondent’s service of more than five actual years in custody prior to the issuance of the deportation order, exclusive of pretrial time served, barred him from eligibility for INA § 212(c), 8 U.S.C. § 1182(c) relief).

[11] Moreno-Cebrero v. Gonzales, 485 F.3d 395 (7th Cir. May 10, 2007) (presentence criminal detention, for which the defendant at sentence received a credit-for-time-served reduction in the actual sentence to be served, is counted as part of a term of imprisonment in determining whether the noncitizen has actually served five years in custody for purposes of eligibility for relief under former INA § 212(c)); see Edwards v. INS, 393 F.3d 299, 303 (2d Cir. 2004) (“It remains an open question in this circuit whether time accrued in pretrial detention should be counted in calculating whether the five year bar applies.”).

[12] Cf. United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003) (Arizona second conviction of possession of marijuana, in violation of A.R.S. § § 13-901.01(A), (E), did not constitute an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation, because the first-offense maximum punishment was not in excess of one year and therefore did not qualify as a felony under the federal definition, because the increased sentence resulting from the prior conviction was not considered to be “for” the “offense,” but was rather for a recidivist sentence enhancement that could not be considered for that purpose under United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002) (en banc)).

[13] Elia v. Gonzales, 418 F.3d 667 (6th Cir. Oct. 24, 2005).

[14] 8 C.F.R. § 1212.3(f)(4)(ii).

[15] 8 C.F.R. § 1212.3(f)(4).