Tooby's California Post-Conviction Relief for Immigrants
§ 8.18 1. To Be Eligible for the Former Waiver of Deportability under INA 212(c), the Noncitizen Must Avoid Service of an Actual Aggregate Sentence of 5 Years or More for Aggravated Felony Conviction(s)
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An immigrant who would have been eligible for discretionary relief from removal in immigration court, pursuant to former INA § 212(c), at the time of the plea in a criminal case, remains eligible for that relief at the present time.[45] In order to qualify for this relief (at least after 1991), the immigrant must not have actually served a total of five years or more in custody as the result of one or more aggravated felony convictions.[46]
Counsel can avoid a sentence-based disqualification for this relief by vacating or reducing sufficient aggravated-felony sentences so that the aggregate total of the remaining such sentences is less than five years.
If the plea occurred prior to April 24, 1996, the noncitizen can waive deportability on account of any criminal conviction (and a number of non-criminal grounds as well). If the plea occurred on April 24, 1996, and prior to April 1, 1997, eligibility for § 212(c) relief was greatly restricted. If the plea occurred on or after April 1, 1997, § 212(c) relief was completely abolished.
[45] INS v. St. Cyr, 533 U.S. 289, 323 n.48, 121 S.Ct. 2271 (2001) affirming St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000).
[46] The Immigration Act of 1990 (effective November 29, 1990), and the Technical Corrections Act of 1991, imposed this requirement. The person remains eligible for INA § 212(c) relief until the five years have actually been served. Matter of Ramirez-Somera, 20 I. & N. Dec. 564 (BIA 1992).
