Thursday, March 08, 2007

Atkinson: 212(c) Possible Even If Convicted At Trial Pre-1996

In Atkinson v. Gonzales, No. 05-1099 (3d Cir. Mar. 8, 2007), the Third Circuit agreed with Steven Morely that section 212(c) relief for legal permanent residents should be possible if the conviction happened before April 24, 1996, regardless of whether the person was convicted after a trial or pled guilty! The BIA and IJ Lawrence F. Stengel erred by refusing to let him seek 212(c) relief.

Section 212(c) relief is extremely complicated but the extreme basics are it provides an opportunity to get a waiver for a conviction that happened before April 24, 1996 for someone who is a legal permanent resident. (There are other requirements, but to keep this short I will not go into them, but research more if you want to pursue it.)

In 1996, Congress in a very unfortunate and controversial move tried to get rid of section 212(c) relief retroactively and prospectively. Thanks to the Supreme Court ruling in 2001 in INS v. St. Cry, it was clear that people who pled guilty before April 24, 1996 could still seek section 212(c) relief. With this decision, the Third Circuit ruled that even if you were convicted at a trial, you can still seek section 212(c) relief. This is an expansion on Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004), because you do not need to show that you were offered a plea bargain that you ultimately rejected.

This makes sense because Congress may not make retroactive changes to the law that impose new consequences to completed events. Whether someone pled guilty or had a jury trial does not tip the balance where Congress so blatantly tried to change the immigration rules after conviction.

Just a warning, although the Third Circuit's ruling makes perfect sense, it remains to be seen whether other courts will agree with the well-founded reasoning, so it is dangerous to rely on this case outside the Third Circuit.


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