Criminal Defense of Immigrants

(G)  Is INA § 212(c) Relief Available Where the Defendant Did Not Yet Have Seven Years Unrelinquished Domicile When the Plea Was Entered?  A noncitizen who entered a plea of guilty less than seven years after adjusting status to lawful permanent resident should still be considered eligible to apply for INA § 212(c) relief, even though, unlike the petitioner in INS v. St. Cyr, s/he had not by the date of plea as yet accrued the full “lawful unrelinquished domicile of seven consecutive years.”  At least one Circuit court follows this rule.[428]

In an unpublished decision,[429] the BIA ruled that under the Second Circuit’s holding in INS v. St. Cyr,[430] a noncitizen need not have accrued seven years’ unrelinquished domicile at the time of his or her plea agreement in order to qualify for INA § 212(c) relief.  The Board reasoned: “[t]he Service often waits several years after an alien is convicted to place him in proceedings and the proceedings often take several years after an alien is convicted to complete.”  In reply to the Service’s argument that a respondent without the required seven years’ unrelinquished domicile could not reasonably have relied on the availability of § 212(c) relief, the Board stated it did not “believe that the Second Circuit requires an alien to show specific reliance on the availability of § 212(c) relief.”[431]  This reasoning should apply with equal force to the Supreme Court’s decision because the high court adopted the Second Circuit’s reasoning with little embellishment.  Moreover, the noncitizen had a right to expect that the seven years would continue to accrue even after the plea had been entered, since that was the law at the time of the plea. 

While unpublished decisions do not bind the Board absolutely,[432] if an agency decides to depart from its earlier interpretation, it must confront the issue and explain why the change is reasonable.[433]  Since no change in the law or difference in circumstances justifies a departure from this line of reasoning, it should be followed.[434] 

                New Regulations:  The new regulations codify the rule that the noncitizen must have “seven consecutive years of lawful unrelinquished domicile in the United States prior to the date of the final administrative order of deportation or removal.”[435]

[428] Alvarez-Hernandez v. Acosta, 401 F.3d 327 (5th Cir. Feb. 17, 2005) (noncitizen need not have accrued seven years of unrelinquished domicile at the time of plea in order to be eligible for INA § 212(c), 8 U.S.C. § 1182(c) relief under INS v. St. Cyr; following rule that seven years for domicile for § 212(c) stops at time of application for § 212(c)).  See also Gonzalez-Garcia v. Gonzales, 431 F.3d 234 (5th Cir. Nov. 16, 2005).

[429] Matter of Asirvatham,  A40 104 383 (BIA, June 15, 2001) (unpublished), 78 Interpreter Releases 1205 (July 23, 2001).

[430] INS v. St. Cyr, 229 F.3d 406 (2d Cir. 2000), affirmed by 533 U.S. 289 (2001).

[431] Ibid., 78 Interpreter Releases 1205, 1207 (July 23, 2001). 

[432] 8 C.F.R. § 1003.1(g); Chan v. Reno, 113 F.3d 1068 (9th Cir. 1997).

[433] Unpublished decisions are not a license to “adopt significantly inconsistent policies that result in conflicting lines of precedent.”  Davila-Bardales v. INS, 27 F.3d 1 (1st Cir. 1994). 

[434] Thanks to Paul Zoltan for this argument.

[435] 8 C.F.R. § 1003.44(b)(3) (emphasis added).