Crimes of Moral Turpitude

 

(A)

Brief History of INA § 212(c).  Prior to November 29, 1990, a waiver of inadmissibility under INA § 212(c) was generally available to noncitizens who:

 

(1)    had been lawfully admitted for permanent residence;[489]

(2)    had temporarily proceeded abroad voluntarily and not under an order of deportation; and

(3)    were returning to a lawful unrelinquished domicile of seven consecutive years in the United States.

 

In addition to these eligibility requirements, the noncitizen was also required to establish that s/he merited the favorable exercise of discretion in order to obtain the waiver.[490]  A conviction waived under INA § 212(c) will no longer constitute a ground of removal, although the DHS may join a conviction for a crime of moral turpitude that has been waived with another that has not, to establish deportability for conviction of two CMT offenses.[491]

 

This relief was also available to lawful[492] permanent residents who had not departed the United States, but were in deportation proceedings,[493] but only to noncitizens found deportable under a charge of deportability for which there was a comparable ground of excludability.[494] 

After the passage of the Immigration Act of 1990,[495] INA § 212(c) relief was no longer available to a noncitizen convicted of an aggravated felony and who had actually served five years in prison.  This was soon amended to bar a noncitizen convicted of one or more aggravated felonies for which s/he actually served an aggregate of five years in prison.[496]

 

Additional limitations on eligibility for § 212(c) relief were imposed by AEDPA on April 24, 1996.[497]  Section 440(d) of AEDPA eliminated availability of § 212(c) relief to noncitizens who were “deportable by reason of having committed any criminal offense covered in § 241(a)(2)(A)(iii), (B), (C), or (D) or any offense covered by § 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by § 241(a)(i) (A).”  Therefore, after April 24, 1996, § 212(c) was available to waive only:

 

·        excludability for a single crime of moral turpitude;

·        deportability for conviction of one crime involving moral turpitude, committed within five years of admission; or

·        deportability for convictions of two or more crimes of moral turpitude where only one or none carried a potential maximum sentence of one year or more.[498] 

·        any other ground of deportation — other than those specifically barred by the AEDPA amendment to § 212(c) — for which there is a parallel ground of inadmissibility.[499] 

 

Effective on April 1, 1997, § 212(c) of the Act was repealed in its entirety, and replaced by cancellation of removal for lawful permanent residents under INA § 240A(a). 

 

            On June 25, 2001, the Supreme Court held that the repeal of § 212(c) could not be applied retroactively to the appellant who was presumed to rely upon the availability of § 212(c) relief, when s/he entered a plea agreement or plea of guilty prior to April 1, 1997, and had already accrued seven years of unrelinquished domicile in the United States.[500]  St. Cyr makes § 212(c) relief available to noncitizens in removal proceedings, as well as to those in deportation or exclusion proceedings.   Regulations interpreting St. Cyr were issued on September 28, 2004.[501]

[489] See INA § 212(c), 8 U.S.C. § 1182(c) (1990).  See also Savoury v. United States Att’y Gen., 449 F.3d 1307 (11th Cir. May 25, 2006) (noncitizen granted LPR status by mistake of DHS, where noncitizen was inadmissible at the time of adjustment, is not a lawful permanent resident for purposes of INA § 212(c) eligibility); Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. Dec. 7, 2005) (where DHS erroneously granted LPR status to noncitizen who had prior controlled substance/aggravated felony conviction, noncitizen was ineligible for INA § 212(c) relief in removal proceedings).

[490] Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978).  See generally Immigrant Legal Resource Center, Winning a 212(c) Case (1995); National Immigration Project of the National Lawyers Guild, Immigration Law and Defense § 8.5 (2003);. 

[491] Becker v. Gonzales, 473 F.3d 1000 (9th Cir. Jan. 10, 2007) (“This is because ‘the grant of section 212(c) relief merely waives the finding of deportability rather than the basis of the deportability itself. Therefore, the crimes alleged to be grounds for deportability do not disappear from the alien’s record for immigration purposes.’”); Molina-Amecua v. INS, 6 F.3d 646 (9th Cir. 1993); Molenda v. INS, 998 F.2d 291, 294-95 (5th Cir. 1993) (same); Comas v. McDonough, No. Civ.A. 04-10691-PBS (D. Mass. Mar. 23, 2005) (unpublished); Matter of Balderas, 20 I. & N. Dec. 389 (BIA 1990).

[492] But see, De La Rosa v. Dep't of Homeland Sec., 489 F.3d 551 (2d Cir. Jun. 13, 2007) (a lawful permanent resident who has procured her status by fraud or mistake has not been "lawfully admitted for permanent residence" for purposes of section 212(c)).

[493] See Ashby v. INS, 961 F.2d 555, 557 n.2 (5th Cir. 1992); Mantell v. United States Dep’t of Justice, 798 F.2d 124, 125 n.2 (5th Cir. 1986); Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976).

[494] See, e.g., Matter of Brevia, 23 I. & N. Dec. 766 (BIA 2006), afford, Brita-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007) (deportation proceedings begun in February, 2003, on the basis of a 1995 conviction of unauthorized use of a motor vehicle: eight-year delay); Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005).  But see Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007) (disagreeing with Matter of Blake); Matter of Azure, 23 I. & N. Dec. 695 (BIA 2005) (LPR seeking 212(c) in conjunction with application for new green card does not need to show comparable grounds).

[495] Pub. L. No. 101-649, 104 Stat. 4978 (Nov. 29, 1990).

[496] See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 24.28(E) (4th Ed. 2007).

[497] Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996).

[498] Cf. Alberto-Gonzalez v. INS, 215 F.3d 906 (9th Cir. 2000) (holding the multiple CMT ground of deportation had not been established since a one-year sentence had not been imposed on each of the two convictions, as required under the law in effect when the deportation proceedings were begun).

[499] See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 24.28(C) (4th Ed. 2007).

[500] INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2275 (2001).

[501] 8 C.F.R. § § 1003.44, 1212.3, 1240.1.