8 C.F.R. § 1212.3

Application for the exercise of discretion under former section 212(c)

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(a) Jurisdiction. An application by an eligible alien for the exercise of discretion under former section 212(c) of the Act (as in effect prior to April 1, 1997), if made in the course of proceedings under section 240 of the Act, or under former sections 235, 236, or 242 of the Act (as in effect prior to April 1, 1997), shall be submitted to the immigration judge by filing Form I-191, Application for Advance Permission to Return to Unrelinquished Domicile.

(b) Filing of application. The application may be filed prior to, at the time of, or at any time after the applicant's departure from or arrival into the United States. All material facts or circumstances that the applicant knows or believes apply to the grounds of excludability, deportability, or removability must be described in the application. The applicant must also submit all available documentation relating to such grounds.

(d) Validity. Once an application is approved, that approval is valid indefinitely. However, the approval covers only those specific grounds of excludability, deportability, or removability that were described in the application. An applicant who failed to describe any other grounds of excludability, deportability, or removability, or failed to disclose material facts existing at the time of the approval of the application, remains excludable, deportable, or removable under the previously unidentified grounds. If the applicant is excludable, deportable, or removable based upon any previously unidentified grounds a new application must be filed.

(e) Filing or renewal of applications before an immigration judge. (1) An eligible alien may renew or submit an application for the exercise of discretion under former section 212(c) of the Act in proceedings before an immigration judge under section 240 of the Act, or under former sections 235, 236, or 242 of the Act (as it existed prior to April 1, 1997), and under this chapter. Such application shall be adjudicated by the immigration judge, without regard to whether the applicant previously has made application to the district director.

(2) The immigration judge may grant or deny an application for relief under section 212(c), in the exercise of discretion, unless such relief is prohibited by paragraph (f) of this section or as otherwise provided by law.

(3) An alien otherwise entitled to appeal to the Board of Immigration Appeals may appeal the denial by the immigration judge of this application in accordance with the provisions of § 1003.38 of this chapter.

(f) Limitations on discretion to grant an application under section 212(c) of the Act. An application for relief under former section 212(c) of the Act shall be denied if:

(1) The alien has not been lawfully admitted for permanent residence;

(2) The alien has not maintained lawful domicile in the United States, as either a lawful permanent resident or a lawful temporary resident pursuant to section 245A or section 210 of the Act, for at least seven consecutive years immediately preceding the filing of the application;

(3) The alien is subject to inadmissibility or exclusion from the United States under paragraphs (3)(A), (3)(B), (3)(C), (3)(E), or (10)(C) of section 212(a) of the Act;

(4) The alien has been charged and found to be deportable or removable on the basis of a crime that is an aggravated felony, as defined in section 101(a)(43) of the Act (as in effect at the time the application for section 212(c) relief is adjudicated), except as follows:

(i) An alien whose convictions for one or more aggravated felonies were entered pursuant to plea agreements made on or after November 29, 1990, but prior to April 24, 1996, is ineligible for section 212(c) relief only if he or she has served a term of imprisonment of five years or more for such aggravated felony or felonies, and

(ii) An alien is not ineligible for section 212(c) relief on account of an aggravated felony conviction entered pursuant to a plea agreement that was made before November 29, 1990; or

(5) The alien is deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act.

(g) Relief for certain aliens who were in deportation proceedings before April 24, 1996. Section 440(d) of Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) shall not apply to any applicant for relief under this section whose deportation proceedings were commenced before the Immigration Court before April 24, 1996.

(h) Availability of section 212(c) relief for aliens who pleaded guilty or nolo contendere to certain crimes. For purposes of this section, the date of the plea agreement will be considered the date the plea agreement was agreed to by the parties. Aliens are not eligible to apply for section 212(c) relief under the provisions of this paragraph with respect to convictions entered after trial.

(1) Pleas before April 24, 1996. Regardless of whether an alien is in exclusion, deportation, or removal proceedings, an eligible alien may apply for relief under former section 212(c) of the Act, without regard to the amendment made by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, with respect to a conviction if the alien pleaded guilty or nolo contendere and the alien's plea agreement was made before April 24, 1996.

(2) Pleas between April 24, 1996 and April 1, 1997. Regardless of whether an alien is in exclusion, deportation, or removal proceedings, an eligible alien may apply for relief under former section 212(c) of the Act, as amended by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, with respect to a conviction if the alien pleaded guilty or nolo contendere and the alien's plea agreement was made on or after April 24, 1996, and before April 1, 1997.

(3) Please on or after April 1, 1997. Section 212(c) relief is not available with respect to convictions arising from plea agreements made on or after April 1, 1997.

[56 FR 50034, Oct. 3, 1991, as amended at 60 FR 34090, June 30, 1995; 61 FR 59825, Nov. 25, 1996; 66 FR 6446, Jan. 22, 2001; 69 FR 57834, Sept. 28, 2004]

Notes of Decisions

Cited in 184 cases (2 in the last 5 years), 2004–2026 · leading case: Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009).

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Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009). · cites it 14× “" To what extent this will actually save the government resources is something we won't know until we try it, but it is hardly irrational to presume that a significant number of aliens may decide to depart in order to get a shot at 212(c) relief. Congress certainly is entitled…”

Abebe v. Gonzales, 493 F.3d 1092 (9th Cir. 2007). · cites it 16× “722 (BIA 2005), and a recently promulgated regulation, 8 C.F.R. § 1212.3 (f)(5), the BIA affirmed.”

Abdelghany, 26 I. & N. Dec. 254 (BIA 2014). · cites it 16× “§ 1182 (c) (1994), but the Immigration Judge concluded that he was ineligible for a waiver because the aggravated felony category under which he was charged did not have a “statutory counterpart” in the grounds of inadmissibility, as required by 8 C.F.R. § 1212.3 (f)(5) (2011)…”

Morgan v. Keisler, 507 F.3d 1053 (6th Cir. 2007). · cites it 10× “8 C.F.R. § 1212.3 (f)(5). Section 1212.3(f)(5) of the DOJ regulations is called the “statutory-counterpart” or “comparable-ground” rule and is designed to ensure consistency between the invocation of § 212(c) in the deportation/removal context (for which such relief was not…”

Enriquez-Gutierrez v. Holder, 612 F.3d 400 (5th Cir. 2010). · cites it 9× “3 (d) provides that the approval of an application for § 212(c) relief only covers “those specific grounds of excludability, deportability, or removability that [are] described in [an alien’s] application,” Enriquez disclosed that he might be deportable due to “convictions for…”

Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th Cir. 2008). · cites it 7× “[t]he alien is deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act.”

Dung Tri Vo v. Gonzales, 482 F.3d 363 (5th Cir. 2007). · cites it 6× “Relying on 8 C.F.R. § 1212.3 (f)(5), and the reasoning of Matter of Blake, 23 I.”

Vue v. Gonzales, 496 F.3d 858 (8th Cir. 2007). · cites it 6× “Similarly, his contention that the BIA's interpretation of 8 C.F.R. § 1212.3 (f)(5) is not reasonable because it is "based on a regulation enacted more than 10 years after" his plea also fails.”

Cyrus v. Keisler, 505 F.3d 197 (2d Cir. 2007). · cites it 5× “§ 1003.44 is not available to a petitioner ineligible for section 212(c) relief because 8 C.”

Paulo v. Holder, 669 F.3d 911 (8th Cir. 2011). · cites it 4× “” 8 C.F.R. § 1212.3 (f)(5). Two related questions arise in the application of the statutory counterpart rule.”

Aguilar-Ramos v. Holder, 594 F.3d 701 (9th Cir. 2010). · cites it 2× “See 8 C.F.R. § 1212.3 (h). For a petitioner such as Aguilar to qualify for section 212(c) relief, the ground of removal must have a statutory counterpart among the grounds of inadmissibility.”

Garcia-Padron v. Holder, 558 F.3d 196 (2d Cir. 2009). · cites it 5× “The statute instructs that if that date is before April 1, 1997, the amendment repealing section 212(c) “shall not apply.” IIRIRA § 309(c). We are compelled to identify error in the BIA’s focus on the date of petitioner’s post-IIRIRA conviction and in its failure to follow…”

Show all 184 citing cases →

— 8 C.F.R. § 1212.3(f) — 3 cases

Morgan v. Keisler, 507 F.3d 1053 (6th Cir. 2007). “8 C.F.R. § 1212.3 (f)(5). Section 1212.3(f)(5) of the DOJ regulations is called the “statutory-counterpart” or “comparable-ground” rule and is designed to ensure consistency between the invocation of § 212(c) in the deportation/removal context (for which such relief was not…”

Ferguson v. U.S. Attorney Gen., 563 F.3d 1254 (11th Cir. 2009).

Morgan v. Gonzales (6th Cir. 2007).

— 8 C.F.R. § 1212.3(f)(4)(i) — 1 case

Melo v. Ashcroft, 364 F. Supp. 2d 183 (D.R.I. 2005).

— 8 C.F.R. § 1212.3(f)(5) — 5 cases

Vue v. Gonzales, 496 F.3d 858 (8th Cir. 2007). “Similarly, his contention that the BIA's interpretation of 8 C.F.R. § 1212.3 (f)(5) is not reasonable because it is "based on a regulation enacted more than 10 years after" his plea also fails.”

Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th Cir. 2008). “[t]he alien is deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act.”

Abebe v. Mukasey, 577 F.3d 1113 (9th Cir. 2009).

Zamora-Mallari, Erne v. Mukasey, Michael B. (7th Cir. 2008).

Kao Vue v. Alberto Gonzales (8th Cir. 2007).

— 8 C.F.R. § 1212.3(g) — 2 cases

Enriquez-Gutierrez v. Holder, 612 F.3d 400 (5th Cir. 2010). “3 (d) provides that the approval of an application for § 212(c) relief only covers “those specific grounds of excludability, deportability, or removability that [are] described in [an alien’s] application,” Enriquez disclosed that he might be deportable due to “convictions for…”

Reid v. Attorney Gen., 177 F. App'x 216 (3rd Cir. 2006).

— 8 C.F.R. § 1212.3(h) — 3 cases

Diem Thi Huynh v. Holder, 321 F. App'x 649 (9th Cir. 2009).

Jimenez-Aguilar v. Gonzales, 168 F. App'x 552 (5th Cir. 2006).

Diem Thi Huynh v. Holder, 321 F. App'x 649 (9th Cir. 2009).

— 8 C.F.R. § 1212.3(h)(1) — 1 case

Eski v. Mukasey, 266 F. App'x 669 (9th Cir. 2008).

— 8 C.F.R. § 1212.3(h)(3) — 2 cases

Beltran v. Mukasey, 286 F. App'x 914 (6th Cir. 2008).

Francois v. Attorney Gen., 264 F. App'x 211 (3rd Cir. 2008).

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