BIA: To determine eligibility under § 212(c), use date of plea rather than date of sentencing

In a decision released last week, the Board of Immigration Appeals held that eligibility for relief under former § 212(c) of the INA depends on the date that the non-citizen entered a plea in the criminal proceeding not the date that the criminal court actually issued a sentence. Matter of Moreno-Escobosa, 25 I&N Dec. 114, 116 (BIA 2009).

Section 212(c) was eliminated in 1996. However, under INS v. St. Cyr, non-citizens remain eligible for relief under former § 212(c) if they were convicted through a plea agreement and would have been eligible for relief at the time of their plea. 533 U.S. 289 (2001); see Matter of Moreno-Escobosa, 25 I&N Dec. at 115.

This case concerned an LPR who entered a guilty plea on July 21, 1991. According to the BIA, Moreno-Escobosa failed to appear for sentencing. It seems that he was free for over a decade. He was finally caught and sentenced on October 6, 2005. Matter of Moreno-Escobosa, 25 I&N Dec. at 115.

The key issue, therefore, is whether St. Cyr is triggered by the date that the criminal defendant entered a plea or the date that the criminal court issued a sentence. The Immigration Judge found that Moreno-Escobosa was not eligible for § 212(c) relief “because although he pled guilty to his offense in 1991, the conviction did not become final until he was sentenced in 2005, after the repeal of section 212(c).” Matter of Moreno-Escobosa, 25 I&N Dec. at 115. On appeal, Moreno-Escobosa argued that he is eligible for § 212(c) relief because St. Cyr is triggered by the plea date not the sentencing date. Matter of Moreno-Escobosa, 25 I&N Dec. at 115.

The BIA agreed with Moreno-Escobosa. As the BIA explained,

“It is the date of an alien’s plea agreement, rather than the date of sentencing, that controls in determining whether the alien is eligible for a section 212(c) waiver. . . . Therefore, because the respondent entered a guilty plea in 1991, we conclude that he is not precluded from establishing eligibility for a waiver on the basis of his 2005 sentencing date.” Matter of Moreno-Escobosa, 25 I&N Dec. at 116.

The BIA based its rational on the Supreme Court’s concern in St. Cyr with criminal defendants’ reliance on the existence of § 212(c) when determining whether to enter a plea or not. Matter of Moreno-Escobosa, 25 I&N Dec. at 116. Though the BIA did not say as much, the suggestion is that any reliance by criminal defendants occurred prior to the date that they inform the criminal court of their desire to plead; they do not rely on the possibility of § 212(c) relief after pleading but before sentencing. As such, the date that the conviction became final is irrelevant to the St. Cyr analysis.