The INS published on January 22, 2001, its regulations for individuals to apply for relief pursuant to section 212(c) when their deportation proceedings were commenced before April 24, 1996. This final rule is effective as of January 22, 2001 and it creates a uniform procedure for the Immigration Court to apply the law as enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Section 212 (c) was enacted to allow aliens who were placed in deportation proceedings in the United States because of criminal convictions to apply for discretionary relief from deportation. By enacting the AEDPA, Congress significantly restricted the availability of discretionary relief from deportation under section 212(c). Section 440(d) of the AEDPA rendered ineligible for relief under INA section 212(c) aliens who were deportable from the United States because of convictions for certain criminal offenses, including aggravated felonies, controlled substance offenses, certain firearms offenses, espionage, and several crimes involving moral turpitude.

These regulations came into effect as a result of the decisions of several Federal Courts in the United States concerning the issue of retroactivity of the AEDPA. These lawsuits were a result of the decision of the Board of Immigration Appeals in Matter of Soriano, where the Board held that section 440(d) of AEDPA applied to aliens whose deportation proceedings commenced or whose criminal conduct or conviction occurred before AEDPA was enacted. The Attorney General later vacated the holding in Matter of Soriano in response to several lawsuits which were filed in the Federal Courts.

The regulations provide a period of 180 days for aliens affected by the decision in Matter of Soriano to file a motion to reopen their deportation proceedings with the immigration court. To qualify under section 212(c) relief, the alien must prove that (1) the deportation proceedings were commenced before April 24, 1996; (2) the alien is subject to a final order of deportation; and (3) would be eligible to apply for section 212(c) relief if proceedings were reopened.

It is important to note that the Attorney General will continue to apply AEDPA section 440(d) to aliens whose deportation proceedings were commenced after AEDPA was enacted into law, even if the alien committed his crime or was convicted of the crime before that date.