Cespedes-Aquino: 212(c) Not Available for Post-1997 Conviction

In Cespedes-Aquino v. Gonzales, No. 06-1550 (3d Cir. Aug. 21, 2007), the Third Circuit waded again into the murky law of section 212(c) relief. Section 212(c) granted immigration judges the discretion to allow someone with green card status (LPR status) to stay in the United States despite a criminal conviction if the person could meet very strict requirements and show that his good qualities outweigh all of his negative qualities. It was a sensible decision to give some discretion to immigration judges. In 1997, though, Congress's decision to repeal section 212(c) took effect -- a controversial move by Congress that many people still believe was a grave mistake.

The Third Circuit and other courts are left with trying to figure out how to deal with Congress's repeal of section 212(c). Congress did not say it was repealing it retroactively, so it is now well-established that someone convicted after a guilty plea before a specific date (in most cases, before April 1997), can still use section 212(c) relief. And the Third Circuit recently ruled in Atkinson v. Gonzales, 479 F.3d 322 (3d Cir. 2007) that those who were found guilty (even if not by guilty plea) before the applicable date (usually April 1997), can still use section 212(c) relief also. (Figuring out the applicable date depends on the crime involved and I'm not going to explain that analysis here.)

This case raises the strange issue of someone who rejected a plea bargain offer pre-1997 but was not convicted until after 1997 because he fled the court for 13 years. (He rejected a plea bargain offer in 1990 and finally pled guilty in 2004.) The parties argued heavily about whether absconding from the case for 13 years meant he could not use section 212(c) relief. The Third Circuit in broad dicta ruled that only people whose conviction or plea agreement was before the repeal of section 212(c) [April 1997] can try to use section 212(c) relief, regardless of whether the person rejected a plea bargain before 1997 or had absconded during the trial.

Time will tell whether the Third Circuit's broad and inflexible rule will be modified for cases where someone rejected a guilty plea pre-1997 and for reasons other than the person absconding, the final conviction is after April 1997.