Earlier this week the Eleventh Circuit released an important decision limiting the availability of relief under former INA 212(c). In INS v. St. Cyr, 533 U.S. 289 (2001) to instances where the non-citizen was convicted of a crime after trial. In St. Cyr, the Supreme Court decided that 212(c) relief remained available after its repeal for individuals who entered into a plea agreement. (For more on St. Cyr, see the National Immigration Law Center’s analysis.
Having never considered whether St. Cyr extends to instances where a conviction resulted after a trial, the Ferguson Court clearly found that it does not: “Joining the majority of circuits, we decline to extend St. Cyr to aliens who were convicted after a trial because such aliens’
decisions to go to trial do not satisfy St. Cyr’s reliance requirement. Therefore, § 212(c) relief is not available to such aliens.”
All is not lost for individuals who went to trial, though. In a footnote, the Ferguson Court explained that it was not taking a position “on the availability of § 212(c) relief in circumstances where an alien (convicted after trial) makes an individualized showing of reliance on § 212(c) and affirmatively chooses to wait to file a § 212(c) application to build up a better record.” The Court referred to the Second Circuit’s decision in Restrepo v. McElroy, 369 F.3d, 627, 634 (2nd Cir. 2004), and the Fifth Circuit’s decision in Carranza-De Salinas v. Gonzales, 477 F.3d 200, 208-210 (5th Cir. 2007) in which those courts extended 212(c) relief for individuals convicted after a trial in limited circumstances.