The Sixth Circuit Court of Appeals recently held that former INA § 212(c) was repealed and never reinstated for people who were convicted after a trial. Kellermann v. Holder, No. 08-3927, slip op. (6th Cir. Jan. 25, 2010) (Norris, Cole, and Adams). Judge Adams wrote for the three-judge panel. 

This case concerned a lawful permanent resident who was convicted in 1992 “of making false statements to an agency of the United States and conspiracy to defraud the United States in violation of 18 U.S.C. §§ 371 and 1001.” Kellermann, No. 08-3927, slip op. at 2.The IJ determined that Kellermann was not eligible for relief under former §212(c) “because he did not enter a guilty plea, but was convicted by a jury.” Kellermann, No. 08-3927, slip op. at 3.

In reaching a determination, the Sixth Circuit reviewed § 212(c)’s contentious history.

“Section 212(c), before it was repealed by the Illegal Immigration Reform and Immigrant Responsibility Actof 1996 (“IIRIRA”), Pub.L. 104-208,  110 Stat. 3009 (1996), allowed the Attorney General to readmit to the United States another wise inadmissible permanent resident alien under certain conditions, but did not allow the Attorney General to admit such an alien if he had been convicted of one or more aggravated felonies and had served a term of imprisonment of at least 5 years.” Kellermann, No. 08-3927, slip op. at 8-9.

The Sixth Circuit then turned to the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), in which “the Supreme Court held that INA § 212(c) relief‘remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.’” Kellermann, No. 08-3927, slip op. at 9 (quoting St. Cyr, 533 U.S. at 326). The St. Cyr Court expressed concern about the quid pro quo nature of plea bargaining and the harmful effects that would result if Congress retroactively repealed § 212(c) relief for people who entered into plea agreements after relying on a plea agreement.

Though St. Cyr only referenced convictions that resulted from reliance on plea agreements several circuits have considered whether the St. Cyr holding includes convictions that resulted from a trial. As the Sixth Circuit’s review indicates, there is a sharp circuit split on this issue. The Second,Third, Fifth, and Tenth Circuits have found that, after St. Cyr, relief is available under former § 212(c) for individuals who were convicted after a trial. Kellermann, No. 08-3927, slip op. at 9-10 (reviewing cases from the Second, Third, Fifth,and Tenth Circuits). In contrast, “seven circuit courts have held that aliens who proceeded to trial are not entitled to apply for relief under former §212(c) after its repeal.” Kellermann, No. 08-3927, slip op. at 10 (reviewing cases from the First, Second, Fourth,Fifth, Seventh, Ninth, and Eleventh Circuits).

The Sixth Circuit quoted favorably from the Eleventh Circuit’s decision in Ferguson v. Att’y Gen., 563 F.3d 1254,1271 (11th Cir. 2009), in which the Ferguson Court referenced the role of reliance in maintaining § 212(c) relief before adding: “Ferguson did not plead guilty but was convicted by a jury. And aside from her decision to go to trial, she points to no other ‘transactions’ or‘considerations already past’ on which she relied.” Kellermann, No. 08-3927, slip op. at 10-11. The Sixth Circuit apparently found this reasoning persuasive because it concluded:

“We conclude that IIRIRA’s repeal of § 212(c) does not have an impermissible retroactive effect on Dr. Kellermann because, in choosing to proceed to trial, he did not abandon any rights or admit guilt in reliance on continued eligibility for § 212(c) relief….[W]e find the reasoningof the majority of circuits persuasive and now join them in declining to extend St. Cyr, to aliens, like the petitioner, who, prior to the repeal of §212(c), were convicted after a trial.”

This is an issue that’s ripe for Supreme Court review.