The INS recently published a proposed regulation that would allow immigrants who pled guilty to certain criminal offenses before April 1, 1997, to apply for the form of relief from deportation that was available at that time. In 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, the form of relief known as a waiver of deportation was eliminated and replaced with the much more limited cancellation of removal. There are a number of differences, but the most important, and the one that led to the most litigation, was that cancellation was unavailable when the basis for deportation was nearly any criminal conviction. Problems arose because prior to the repeal of the waiver, many noncitizens had pled guilty in reliance on the waiver. Following years of litigation, in June 2001, the Supreme Court ruled that immigrants who pled guilty and would have been eligible for the waiver at the time of the plea, must be allowed to pursue it, despite the change in the law.
This proposed regulation essentially implements the Supreme Court decision, and will provide a uniform basis for dealing with these cases. To be eligible to apply for the waiver under these new rules, the applicant must be a permanent resident, and have been a permanent resident before receiving a final order of deportation. They must have lawfully resided in the US for at least seven continuous years, and cannot have been ordered deported on the basis of an aggravated felony as currently defined, regardless of the time of their guilty plea. Those who are outside the US, those who were deported and unlawfully returned, and those in the US without authorization are ineligible.
Another important limit in the regulation is created by the fact that shortly before the Illegal Immigration Reform and Immigrant Responsibility Act was passed, Congress passed another law restricting the ability to seek a waiver of deportation, the Antiterrorism and Effective Death Penalty Act. This law became effective on April 24, 1996. Whereas the IIRAIRA eliminated the waiver, the AEDPA made an expanded group of people ineligible for the waiver, based on certain criminal convictions. Because of this, those who pled guilty before April 24, 1996 will be eligible to apply for the waiver as it existed before that day. Those who pled guilty between April 24, 1996 and April 1, 1997 will be eligible to pursue the waiver as it existed after the AEDPA amendments.
There are two ways of pursuing the waiver, depending on whether the applicant is in deportation proceedings or not. If the applicant is not in proceedings, he or she makes the waiver application with the appropriate INS district director. If the applicant is in proceedings before an immigration judge, the application is filed with the IJ. If there is an appeal pending before the Board of Immigration Appeals, the applicant should file a motion to remand the case to an IJ so that he or she may apply for the waiver. If the applicant is subject to a final order of deportation, he or she may file a special motion to seek the waiver. This motion should be filed with either the IJ or the Board, depending on which last heard the case.
The INS will accept comments on this rule until October 15, 2002. After the rule becomes effective, applicants will have 180 days to apply for the waiver.
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