Possibly. Former INA section 212(c) was repealed effective April 1, 1997, but a lawful permanent resident facing removal because of a conviction or plea entered before that date may still be able to apply for this discretionary relief. The conviction date alone does not decide eligibility. Lawful permanent residence, seven consecutive years of lawful unrelinquished U.S. domicile, the law in effect when the plea or conviction occurred, particular exclusions, and the immigration case’s timing and forum all matter. An opportunity to apply is not an approval. (USCIS Form I-191 instructions; Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014).)
Why a repealed provision can still matter
Congress restricted section 212(c) in 1990 and again through the Antiterrorism and Effective Death Penalty Act (AEDPA) on April 24, 1996, before repealing it on April 1, 1997. Applying the later restrictions or repeal to an earlier conviction can raise a retroactivity question. In Abdelghany, the Board of Immigration Appeals held that an otherwise eligible resident may seek former section 212(c) relief for a pre-April 1997 plea or trial conviction. It did not make all old convictions waivable. (Abdelghany, 26 I&N Dec. at 254, 257–61; I-191 instructions.)
The first screen is whether the person was lawfully admitted for permanent residence and accrued seven consecutive years of lawful, unrelinquished domicile in the United States. An old arrest without a conviction, an old conviction without the necessary status or domicile, or a conviction entered after repeal cannot be treated as the same eligibility situation. Check the actual conviction and immigration records before relying on the word “old.” (Abdelghany, 26 I&N Dec. at 254, 259–60; I-191 instructions.)
The conviction period changes the exclusions
| Conviction or plea entered | What counsel must test |
|---|---|
| Before April 24, 1996 | The resident may be able to apply despite the later repeal, but the specified inadmissibility exclusions in Abdelghany remain. There is also a bar tied to at least five years of aggregate imprisonment actually served for one or more aggravated-felony convictions entered from November 29, 1990, through April 24, 1996. |
| April 24, 1996, through March 31, 1997 | Those exclusions still matter. AEDPA section 440(d) may add a bar when the immigration proceedings began on or after April 24, 1996, and the conviction triggers one of its specified deportability grounds. The charging document and proceeding-start date are therefore essential. |
These are screening branches from Abdelghany, not a complete determination for any one conviction. The five-year rule depends on the specified aggravated-felony convictions and time served, rather than an assumed sentence from a charge label. A person with a pre-repeal trial conviction is not disqualified just because there was no plea bargain; the Board expressly rejected that blanket plea-only limit. (Abdelghany, 26 I&N Dec. at 254–55, 259–64; I-191 instructions.)
Which records answer the question now?
Bring counsel the permanent-resident admission and residence history, the precise criminal statute and subsection, plea or trial date, judgment, sentence and custody records, and every immigration charging notice and order. The dates of any exclusion, deportation or removal proceedings help determine which historical restrictions apply and where a request can be made. USCIS’s Form I-191 instructions direct a person already in exclusion, deportation or removal proceedings to request relief from the immigration judge rather than file the form with USCIS. A prior final order or different application posture needs individualized procedural review; this page cannot promise a way to reopen a case. (I-191 instructions, pp. 1–3, 7–8; Abdelghany.)
Former section 212(c) remains discretionary even when an applicant clears the threshold rules. It is different from a current section 212(h) waiver or an ordinary motion to reopen. If an old conviction is affecting your immigration case, the Law Offices of David S. Chesley can review the criminal and immigration records with you to identify which question to take to the appropriate decision-maker. Call (800) 755-5174 or review the firm’s immigration services.