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. Lovan v. Holder, No. 08-2177, slip op. (July 31, 2009) (Loken, Melloy, Benton).
This case presented the court with an appeal by a citizen of Laos who entered the USA as a refugee in 1981 and became a lawful permanent resident in 1985. In 1991 he was convicted by an Arkansas jury of sexual abuse of a child. Lovan v. Holder, No. 08-2177, slip op. at 2. He was sentenced to three years imprisonment, but only served 13 months. Lovan v. Holder, No. 08-2177, slip op. at 2. “At the time of Lovan’s conviction, an alien convicted of an aggravated felony was deportable, but his sex crime did not fall within the statutory definition of aggravated felony. In 1996, Congress amended the definition of aggravated felony to include sexual abuse of a minor,'” thus rendering his conviction an aggravated felony. Lovan v. Holder, No. 08-2177, slip op. at 2 (internal citations omitted).
As a threshold matter, the government argued that the court lacked jurisdiction because § 212(c) no longer exists. Lovan v. Holder, No. 08-2177, slip op. at 3. The 8th Circuit disagreed. First, it pointed out that 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.
This case presented the court with an appeal by a citizen of Laos who entered the USA as a refugee in 1981 and became a lawful permanent resident in 1985. In 1991 he was convicted by an Arkansas jury of sexual abuse of a child. Lovan v. Holder, No. 08-2177, slip op. at 2. He was sentenced to three years imprisonment, but only served 13 months. Lovan v. Holder, No. 08-2177, slip op. at 2. “At the time of Lovan’s conviction, an alien convicted of an aggravated felony was deportable, but his sex crime did not fall within the statutory definition of aggravated felony. In 1996, Congress amended the definition of aggravated felony to include sexual abuse of a minor,'” thus rendering his conviction an aggravated felony. Lovan v. Holder, No. 08-2177, slip op. at 2 (internal citations omitted).
As a threshold matter, the government argued that the court lacked jurisdiction because § 212(c) no longer exists. Lovan v. Holder, No. 08-2177, slip op. at 3. The 8th Circuit disagreed. First, it pointed out that 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.
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