8th Circuit: § 212(c) relief available even if convicted after trial

In a case released late last week, the 8th Circuit held that relief from removal under former INA § 212(c) continues to exist for individuals who were convicted after a jury trial.  INS v. St. Cyr, 533 U.S. 289, 314-26 (2001), clearly stands for the proposition that individuals who pled guilty while § 212(c) was still in effect may still seek relief under § 212(c).  Lovan v. Holder, No. 08-2177, slip op. at 3.  

The 8th Circuit then considered the trickier issue of whether St. Cyr’s holding applies to individuals, like Lovan, who were convicted by a jury.  After noting that there exists a circuit split on this issue, the 8th Circuit elected to follow the 3rd Circuit’s decision in Atkinson v. Attorney General, 479 F.3d 222, 230-31 (3d Cir. 2007).  In Atkinson, the 3rd Circuit concluded that a non-citizen does not have to show “actual reliance” to seek § 212(c) relief.  479 F.3d at 230.  In this way, the 3rd Circuit—and now the 8th Circuit—disagrees with the 5th Circuit’s position that a non-citizen who was convicted after a trial must show actual reliance on the possibility of § 212(c) relief to be eligible for that relief now.  See Carranza-De Salinas v. Gonzales, 477 F.3d 200, 206-09 (5th Cir. 2007); see also Wilson v. Gonzalez, 471 F.3d 111, 122 (2nd Cir. 2006).

This case is great news for immigration attorneys.  In the continuing saga of § 212(c) relief, the 8th Circuit has now aligned itself with the previously lonely 3rd Circuit as the most immigrant-friendly position: § 212(c) relief is available without a showing of actual reliance.  See Atkinson, 479 F.3d at 230-31.  According to the 8th Circuit’s summary, the 2nd and 5th Circuit currently hold that § 212(c) relief exists for individuals convicted after a trial but only if they show actual reliance on the possibility of relief.  See, e.g., Restrepo v. McElroy, 369 F.3d 627, 631-40 (2nd Cir. 2004); Carranza-Salinas, 477 F.3d at 206-09.  Meanwhile, the 1st, 7th, and 9th Circuits hold that § 212(c) relief is not available to individuals who were convicted after a trial.  See, e.g., Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004); Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir. 2002).

The 8th Circuit also did a wonderful job of discussing the evolution of § 212(c), especially the comparable grounds requirement.  This is one of the most comprehensible explanations of the comparable grounds requirement that I have read.  Lovan v. Holder, No. 08-2177, slip op. at 5-8.