IRLI, on behalf of its client the Federation for American Immigration Reform (FAIR), submitted a friend-of-the-court brief at the request of the Board of Immigration Appeals (BIA) to address (1) What impact does the Vartelas v. Holder decision have on the 5th Circuit decisions in Carranza-De Salina v. Gonzales, 477 F.3d 200 (5th Cir. 2007), and Hernandez-Castillo v. Moore, 436 F.3d 516 (5th cir. 2006), which require an alien convicted at trial prior to April 24, 1996, to demonstrate actual and substantial reliance to pursue a waiver under former section 212(c) of the Act; (2) Assuming that after Vartelas reliance is not a prerequisite to establishing eligibility for a waiver under former section 212(c) of the Act where an alien’s qualifying conviction occurred after a trial, (a) what role does reliance play in assessing an alien’s ability to apply for a 212(c) waiver and (b) what factors should be considered in making a determination regarding prima facie eligibility; and What impact does the Vartelas decision have on the regulatory restrictions for 212(c) relief set forth at 8 C.F.R. § 1212.3, particularly with respect to aliens convicted at trial (see, e.g., 8 C.F.R. § 1212.3(h)).
INA § 212(c) was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), but remains in existence for aliens who would have been eligible for the waiver absent the repeal of INA § 212(c). The Supreme Court, overturning previous BIA and 5th Circuit analysis, recently held that this waiver is available for all such lawful permanent residents, including aliens who were convicted by a jury rather than just to those convicted by plea agreements. INA § 212(c) permits the Attorney General to grant a Legal Permanent Resident discretionary relief for admittance even though he might be excludable under certain conditions. According to the Supreme Court, the IIRIRA provision that repealed INA 212(c) did not have the proper “retroactivity” language, which is why this waiver is still available for certain aliens.
The BIA asked FAIR to weigh in on what the test should be for determining when an alien should be eligible for this relief. IRLI attempted to limit the problem created by the Supreme Court, which opens § 212(c) relief to a greater number of aliens, by arguing that although § 212(c) may not be retroactive; the stop-time rule regarding convictions is retroactive. Therefore, if an alien is convicted of a deportable offense prior to the 1996 repeal of INA § 212(c), the alien cannot continue to accrue “lawful presence” while awaiting receipt of a Notice to Appear from DHS.
In its brief, IRLI provided support for the government’s position that the alien was removable. The alien was being removed due to a drug conviction involving cocaine. IRLI argued that removal of the individual was statutorily proper and she was not entitled to discretionary relief.