Ninth Circuit on 212(c), retroactivity: Tyson v. Holder

Ninth Circuit on 212(c), retroactivity: Tyson v. Holder

"Tyson argues that the BIA erred when it decided that she is not eligible to seek § 212(c) discretionary relief from removal pursuant to the former Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(c), which was repealed in 1996 as to aliens with certain criminal convictions. We agree with Tyson that the stipulated facts trial in this case is substantially equal to a guilty plea for the purpose of § 212(c) relief. We hold that applying the repeal of § 212(c) relief would produce an impermissible retroactive effect on Tyson, who was convicted pursuant to a stipulated facts agreement based on a reasonable expectation that it would not negatively affect her immigration status. INS v. St. Cyr, 533 U.S. 289, 319 (2001); Landgraf v. USI Film Prods., 511 U.S. 244, 269-70 (1994). Because the BIA erred in its legal analysis of the effect of this stipulated facts trial, we reverse and remand with instructions to consider Tyson’s § 212(c) application on the merits." Tyson v. Holder, Jan. 27, 2012.  [Hats off to Kari E. Hong (argued), Portland, Oregon, and Kara L. Hartzler, Florence, Arizona!]