Please Note: This article was published in 2015 and does not contain current information.
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Former Section 212(c) of the Act provided that: “aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an oath of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General…” The Board of Immigration Appeals held in Matter of Silva that waivers under Section 212(c) were available to all lawful permanent residents, including those who had not departed. 16 I. & N. Dec. 26 (B.I.A. 1976).
Section 212(c) of the Act was repealed by Section 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208. Since its repeal on April 1, 1997, whether Section 212(c) relief remains available to particular aliens has been a subject of litigation. For example, in I.N.S. v. St. Cyr the U.S. Supreme Court held that aliens who pleaded guilty prior to the enactment of IIRIRA could still apply for Section 212(c) relief. See 533 U.S. 289, 326 (2001).
Whether an alien convicted by a jury prior to April 1, 1997 remained statutorily eligible for relief under former Section 212(c) of the Act, however, remained an open question in the Fifth Circuit. That changed, however, with the Fifth Circuit’s decision in Carranza-De Salinas v. Holder, issued on November 6, 2012. See No. 11-6096 (Nov. 6, 2012).
In Carranza-De Salinas, the Court of Appeals for the Fifth Circuit held that aliens who were convicted by a jury prior to IIRIRA’s effective date remain eligible for Section 212(c) relief. Specifically, the Fifth Circuit concluded that aliens like Carranza, who were convicted by a jury and declined to exercise their right to appeal, sufficiently demonstrated a “likelihood of reliance” on the prior law, namely, Section 212(c).
The Fifth Circuit’s reasoning not only has a significant effect on the availability of Section 212(c) relief, but also holds major implications across the board. Now, in the Fifth Circuit, an alien need only show a likelihood of reliance on a prior law rather than actual, subjective reliance to exercise any asserted right under that law. In other words, Carranza no longer had to show that she and her criminal defense counsel strategized her criminal case to preserve her eligibility for Section 212(c) relief. This greatly eases the burden on aliens attempting to exercise their rights under currently-repealed statutory provisions; they need only show a likelihood of reliance upon the now-repealed provision.