The Unforeseen Costs of Going to Trial: The Vitality of 212(C) Relief for Lawful Permanent Residents Convicted by Trial

November 11, 2010

Before 1996, a Lawful Permanent Resident (LPR) who was made deportable by a criminal conviction could apply for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act. This relief, commonly known as “212(c) relief,” was repealed in 1996. In 2001, the Supreme Court confronted the issue of whether an LPR with a pre-1996 deportable conviction could apply for 212(c) relief in his later post-repeal removal proceedings. The Court decided that an LPR who pleaded guilty to his pre-1996 conviction could still apply for 212(c) relief following the 1996 repeal. The status of those LPRs who were convicted of their pre-1996 offense after a trial remained unclear. Today, the courts of appeals are split on whether LPRs convicted at trial before the repeal of section 212(c) have access to this relief from deportation in their post-1996 removal proceedings stemming from that conviction.

This Note examines and synthesizes the different approaches and resolutions of the courts of ap peals. This Note then undertakes an analysis of whether the repeal of 212(c) relief is impermissibly retroactive as to LPRs subject to post-1996 removal proceedings for pre-1996 convictions at trial. Finally, this Note argues that 212(c) relief should remain available to all LPRs in post-1996 removal proceedings stemming from their pre-1996 convictions, whether the conviction was by plea agreement or by trial.

November 2010

No. 2