Prior to April 24, 1996, the Immigration and Nationality Act (“INA”) provided a §212(c) waiver for certain serious criminal convictions known under the INA as “aggravated felonies.” This date is significant because Congress passed substantial changes to the INA at that time, including replacing the §212(c) waiver with “cancellation of removal,” a more restrictive form of relief. For many Legal Permanent Residents convicted of “aggravated felonies” prior to April 24, 1996 but who were put into removal proceedings after the change in the law, many were unable to seek the benefit of §212(c) because many courts interpreted it to be applicable only to those cases where the non-citizen pled guilty, not to those who went to trial and lost.

Until the Board of Immigration Appeals’ (“BIA”) recent decision in Matter of Abdelghany, 26 I.&N. Dec. 254, published on February 28, 2014, in most circuits, including the Seventh Circuit Court of Appeals, an alien was not eligible for a §212(c) waiver if he or she had contested the criminal case at trial and lost. Rather, the old rule under the INA stated that a Legal Permanent Resident was required to prove he pled guilty in order to qualify for the §212(c) waiver. In this precedent decision the BIA held that a legal permanent resident will be eligible for a waiver under §212(c) irrespective of whether the conviction was the result of a plea of guilty or a finding of guilty at trial.

In order to qualify for §212(c) relief, an alien must demonstrate that (1) he or she has unrelinquished domicile in the U.S. for 7 consecutive years prior to the filing of the application; (2) he or she has not served more than 5 years in prison for offenses committed after November 1, 1990; further, (3) he or she is not inadmissible on the basis of security grounds or international child abduction. Therefore, for those who would have been eligible for 212(c) relief, but were ordered removed from the United States because the criminal conviction was entered after losing at trial, there is now a chance to reopen their immigration cases.

Under typical circumstances, non-citizens may file one Motion to Reopen their removal proceedings not more than 90 days after the final order of removal from the Immigration Court or BIA. The Immigration Court or BIA also has the power, however, to reopen removal proceedings on its own motion, otherwise known as a sua sponte motion, past the 90 days. Non-citizens must ask the courts to exercise this power in a motion, and there is technically no time limit or deadline to do this. At the same time, however, the Immigration Court’s decision is wholly discretionary which means there is no actual right to have the case reopened and, consequently, there would be no appeal if the Immigration Court or the BIA declined to reopen the case. In a recent unpublished case titled Matter of Simmonds, the BIA exercised this power and reopened a non-citizen’s case after he had been ordered removed nearly 15 years ago based on this change in the law for §212(c) waivers.

Reopening is a bit risky – for the reasons explained above – but it may be worthwhile if it is important for the non-citizen to reclaim his or her legal permanent residency status in the United States. Here at Chicago Immigration Advocates we can file the motion to reopen, along with any ameliorative evidence, requesting that the BIA or Immigration Court exercise its sua sponte jurisdiction to reopen a case for an evidentiary hearing on the 212(c) waiver.