Approximately 25 percent of commenters recommended that the rule should provide eligibility for those aliens who were convicted as a result of a trial, in addition to those who made plea agreements. Of these commenters, most argued that the reliance interests of those who went to trial rather than accept plea bargains should be similarly respected. Specifically, these commenters suggested that, because the Supreme Court in St. Cyr recognized the reliance interests of those aliens who made plea agreements wi th prosecutors while relying on the availability of the existing waiver of deportation under the former section 212(c), a similar analysis for those who decided to go to trial with the expectation that they would be eligible to apply for section 212(c) relief should result in preserving their interests. For example, one commenter suggested that because “an immigrant who chose not to enter a plea * * * may have relied upon the availability of section 212(c) when deciding how to proceed,” the Supreme Court's reasoning in St. Cyr “applies in both [the trial and plea agreement] cases.” Other commenters under this category argued that a fundamental unfairness would result to aliens who were unrepresented or detained because they were not aware of the possible consequences of a conviction from a plea agreement, as opposed to that from a trial.

    The Supreme Court in St. Cyr specifically focused on plea agreements in deciding that section 212(c) relief remained available for aliens “who, notwithstanding those convictions, would have been eligible for section 212(c) relief at the time of their plea under the law then in effect.” 533 U.S. at 326. The Court recognized that plea agreements involve a quid pro quo between the defendant and the government, and that defendants who waive several of their constitutional rights (including the right to a trial) and consequently grant the government numerous tangible benefits are likely doing so in reliance on the availability of section 212(c) relief. Id. at 325. As a result of the benefit to the prosecutor bestowed by a plea agreement, and the reliance interest in seeking section 212(c) relief that an alien develops at the time of the guilty plea, it would be contrary to “ `familiar considerations of fair notice, reasonable reliance, and settled expectations” ' to deprive him or her of the benefit due from the q uasi-contractual exchange of benefits entered into with the government. Id. at 323-24 (quoting Landgraf v. USI Film Products, 511 U.S. 244 (1994)). Thus, according to St. Cyr, only the reliance interests of those aliens pleading guilty to crimes when section 212(c) was available were sufficiently strong to warrant continued eligibility for such relief.

    This issue has been heavily litigated in the federal courts, and every circuit that has addressed the question has held that an alien who is convicted after trial is not eligible for section 212(c) relief under St. Cyr. Rankine v. Reno, 319 F.3d 93, 100 (2d Cir. 2003); Theodoropoulos v. INS, 313 F.3d 732, 739-40 (2d Cir. 2002); Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002); Chambers v. Reno, 307 F.3d 284, 293 (4th Cir. 2002), reh'g denied (April 1, 2003); Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121- 22 (9th Cir. 2002), cert. denied, 539 U.S. 902 (2003); see also Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001) (pre-St. Cyr decision distinguishing between aliens who pleaded guilty and those who are convicted after trial). These courts have recognized that aliens who exercise their constitutional right to go to trial do not have the kind of reliance interests that the Supreme Court focused on in St. Cyr.

    Accordingly, the Department has determined to retain the distinction between ineligible aliens who were convicted after criminal trials, and those convicted through plea agreements.

C. Stay of Deportation or Removal

    Approximately 15 percent of commenters recommended that an automatic stay provision should be inserted into the final rule. One commenter stated that a motion to reopen to file for section 212(c) relief should automatically stay the deportation or removal of the alien, while others said that any alien who is eligible for section 212(c) relief should have his or her removal stayed. Further, another commenter proposed that filing a special motion to seek section 212(c) relief should “also serve as an applicat ion for a stay” of removal, while another contended that it should be treated “in the same way that a motion to reopen in absentia proceedings is currently treated,” thereby automatically staying the execution of a final order of deportation or removal upon filing. The general rationale of these commenters was that the consequence of the lack of an automatic stay provision in the final rule would lead to the deportation of eligible aliens before they had the opportunity to apply for section 212(c) relief.

    The proposed rule laid out procedures for applying for a stay of deportation or removal for aliens seeking to apply for section 212(c) relief. Requests for a stay of the execution of a final order must be made in accordance with the prevailing regulatory requirements in 8 CFR 241.6, if made with DHS, or 8 CFR 1003.2(f) or 1003.23(b)(1)(v), if made with EOIR. The Department does not find the application of prevailing regulatory requirements to section 212(c) applicants to be unreasonably burdensome. Accordin gly, the Department does not find it necessary to include an automatic stay provision under this rule.

D. The 180-Day Deadline To File a Special Motion To Seek Section 212(c) Relief

    Approximately 15 percent of the commenters recommended that the 180-day period to file a special motion to seek section 212(c) relief for aliens under a final order of deportation or removal be extended or eliminated. One commenter stated that this time period allotted to file a special motion is “unreasonably short,” given that many LPRs will likely not be aware of this time constraint. Another commenter stated that this time period is inadequate and the Department should “provide additional time to apply, ” particularly if the Department does not “individually notify affected people.” Similarly, another commenter stated simply that the time period is “insufficient,” and should be extended to one year.

    The Department finds the 180-day requirement in which to file a special motion to seek section 212(c) relief for those aliens subject to a final administrative order of deportation or removal to be a reasonable time constraint. Publication in the Federal Register unequivocally constitutes sufficient notice for due process purposes. Congress has specified this form of notice and made that notice binding on all who are within the jurisdiction of the United States. 44 U.S.C. 1507 (publication in Federal Register “is sufficient to give notice of the contents of the document to a person subject to or affected by it”). The courts have clearly relied upon the adequacy of notice by publication in the Federal Register since the Federal Register's inception. See, e.g., Lyng v. Payne, 476 U.S. 926, 942-943 (1986); Dixson v. United States, 465 U.S. 482, 489 n.6 (1984); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947). The Department rejects the notion that more notice is required as a matter of law. The Department does not accept the premise of the commenters' arguments that it, or any other agency, is required to provide individual notice of the content of the law. Like citizens, aliens have a duty to know the law and abide by the law. Th e Department does note, moreover, that the immigrant community and immigrant advocacy organizations possess a well-established network for providing information to the immigrant community. Additionally, the Department notes that the 180-day deadline is double the normal amount of time within which an immigration judge or the Board has jurisdiction over motions to reopen. 8 CFR 1003.2, 1003.23. This is in addition to the 30-day effective date delay period mandated by the Administrative Procedure Act. 5 U.S.C . 553. Accordingly, the Department is not persuaded that more time is appropriate and will retain the 180-day deadline as stated in the proposed rule.

E. Date of the Plea Agreement

    One commenter argued that proposed § 1003.44(b) would create “proof problems” for the immigration judges and the Board with respect to the date on which an alien made a plea agreement. Proposed § 1003.44(b) lists the eligibility requirements that an alien must establish in seeking section 212(c) relief. Paragraph (b)(4) of this section states that an alien must be “otherwise eligible to apply for section 212(c) relief under the standards that were in effect at the time the alien's plea was made, regardles s of when the plea was entered by the court.” The commenter suggested that it would be difficult for the immigration judges or the Board to determine when the alien made his or her plea, as the record of criminal proceedings “often does not include [this] information.” Instead, the commenter suggested that the date the court accepted the plea should be the operative date. The commenter contended that a defendant in criminal proceedings, both at the State and Federal level, has an absolute right to withdraw a plea until it is accepted, and accordingly, he or she has no legitimate expectations of entitlement to section 212(c) relief until the court accepts it.

    The Department declines to accept the commenter's recommendation. The operative language for section 212(c) eligibility--throughout the rule, not just for filing special motions to seek section 212(c) relief--focuses on the “date the plea was agreed to by the parties.” 67 FR at 52633. The Department finds that, consistent with the Supreme Court's decision in St. Cyr, the key in deciding the extent to which an alien is eligible for section 212(c) relief rests on the available relief at the time the alien and the prosecutor made the plea agreement. The Court stressed the importance of respecting the quasi-contractual agreement between the alien and prosecutor in deciding that the alien's reliance interests in making a plea agreement for a “perceived [immigration] benefit” must be preserved. St. Cyr, 533 U.S. at 322. In doing so, the Court did not conclude that the date the criminal court accepts the plea agreement is the time to determine whether the alien is eligible for section 212(c) relief. Thus, the commen ter's proposal is not supported by the Supreme Court's ruling in St. Cyr. The Department intends to continue to rely on this judicial interpretation.

    Further, in any plea agreement in which the government receives “numerous `tangible benefits * * * without the expenditure of prosecutorial resources,' “ the benefits acquired by the prosecutor occur at the moment that the agreement is made given that he or she is relieved of the burdens of preparing the case for trial. St. Cyr, 533 U.S. at 322 (quoting Newton v. Rumery, 480 U.S. 386, 393 n.3 (1987)). Similarly, the moment when the alien enters into an agreement for the exchange of benefits with the prosecu tor in reliance on section 212(c) relief eligibility should be the time at which the alien can begin accruing the benefit of the agreement. Accordingly, the Department disagrees with the commenter and will retain the language in the proposed rule specifying that the date the plea was agreed to by the parties will be the time to determine whether an alien is eligible for section 212(c) relief.

    The alien seeking section 212(c) relief has the burden of establishing his or her eligibility. This burden of proof includes establishing the date on which the alien entered into a plea agreement with the prosecution that resulted in the conviction from which section 212(c) relief is sought. The nature of the comment concerning “proof problems,” however, underscores the need to make clear that the alien seeking section 212(c) relief has the burden of establishing the plea agreement date, and the alien is in the best position to do so because the alien was present (not DHS or the immigration judge) and is most likely to possess the documents reflecting the plea agreement. Accordingly, the Department has inserted a specific statement of that burden in section 1003.44(b) to make this clear. The Department does not believe that the requirement will impose a burden on the immigration judges or the Board.

F. Retroactivity of IIRIRA's Definition of “Aggravated Felony”

    One commenter suggested that the Department's implementation of the St. Cyr decision should preclude a retroactive application of the definition of an aggravated felony as expanded by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, Div. C, 110 Stat. 3009-546. The commenter suggested that the Department allow a section 212(c) applicant to “invoke the law as it was at the time” when the applicant made his or her plea, thereby using the then-existing definitio ns of aggravated felonies rather than applying retroactively the expanded definitions enacted in IIRIRA. In support of this suggestion, the commenter asserted that “Congress has never had and could not have had the intent to subject [section] 212(c) to the retroactive application of the expanded version of the definition of aggravated felony under IIRIRA.” The commenter also asserted that “if the retroactive application of the new definition of aggravated felony would be extended to relief under the pre-IIR IRA regime then the [DHS] could reopen cases to remove aliens who had been granted relief pre-IIRIRA.”

    The Department disagrees with this analysis. St. Cyr makes clear that the Court accepted the retroactive application of the definition of aggravated felony in connection with the availability of section 212(c) relief. In contrast to its finding that there was no unmistakable congressional intent to apply the repeal of section 212(c) retroactively, the Supreme Court in St. Cyr clearly reiterated that Congress indicated unambiguously its intention to apply the definition of “aggravated felony” retroactively u nder IIRIRA section 321(b). 533 U.S. at 319. Thus, IIRIRA's amended definition of “aggravated felony” applies to all convictions, regardless of when they occurred, in determining whether the alien is deportable on account of committing an aggravated felony. Further, as noted in the proposed rule, this amended definition “also applies to determine the eligibility for section 212(c) relief in those cases where an alien is deportable as an aggravated felon. See Matter of Fortiz, 21 I&N Dec. 1199 (BIA 1998).” 6 7 FR at 52630. Accordingly, the Department disagrees with the commenter's contention that the IIRIRA's expanded definition of aggravated felony should not apply to pre-IIRIRA convictions or for purposes of section 212(c) eligibility.

    This rule, however, retains the position of the proposed rule that aliens who have not been charged and found deportable as aggravated felons would not be affected by the retroactivity of the aggravated felony definition under IIRIRA section 321. The Department agrees with the Board's finding in Fortiz that “in order for an alien to qualify as one who is `deportable' under [AEDPA's] amendment to section 212(c), he or she must be charged with, and found deportable, on the requisite ground of deportability.” Fortiz, 21 I&N Dec. at 1212 n.3. Therefore, the expanded definition of aggravated felony enacted in IIRIRA renders ineligible for section 212(c) relief only those aliens who were charged with an aggravated felony as the basis for their deportability. For clarity, this rule revises § 1212.3(f)(4) to reflect the Department's interpretation of the aggravated felony definition, in addition to retaining the language of the proposed rule in amending § 1003.44.

    With respect to the commenter's further assertion that the DHS could reopen cases to remove aliens who were granted relief before IIRIRA's effective date if IIRIRA's amended definition of aggravated felony is retroactively applied, the regulations are clear in prohibiting such a result. 8 CFR 1212.3(d) states that “[o]nce an application [for section 212(c) relief] is approved, that approval is valid indefinitely.” Thus, unless an exception relating to omissions in the application for section 212(c) applies (as described in 8 CFR 1212.3(d)), an approved section 212(c) application cannot be subsequently revoked. Accordingly, the Department will not incorporate the suggestions from this commenter.

    It is also worth noting here that the effect of section 212(c) relief is very limited. For example, a single criminal conviction for a crime involving moral turpitude waived under section 212(c) may still be relied upon at a later date as one of two crimes to establish excludability under section 212(a)(2)(A)(II) of the Act (8 U.S.C. 1182(a)(2)(A)(II)). Matter of Balderas, 20 I&N Dec. 389 (BIA 1991). Thus, section 212(c) relief should not be considered a “pardon” and does not eliminate the conviction for an y other purpose, such as later applications for discretionary relief. Balderas, at 391.

    However, the Department has made a change in the final rule in response to the Ninth Circuit's recent decision in Toia v. Fasano, 334 F.3d 917 (9th Cir. 2003). In Toia, the court of appeals concluded that the amendment made by the Immigration Act of 1990, Pub. L. 101-649, section 511(a), 104 Stat. 4978, 5052 (1990)--which rendered aliens ineligible for section 212(c) relief if they had been convicted of an aggravated felony and had served a term of imprisonment of at least five years--did not apply to an al ien who had pleaded guilty to a criminal offense prior to the enactment of that amendment. The court of appeals, in reliance on St. Cyr, overruled its own prior precedent, Samaniego-Meraz v. INS, 53 F.3d 254 (9th Cir. 1995), which had previously held that the 1990 limitation on the availability of section 212(c) relief properly applied to convictions entered prior to its enactment.

    Although the Department does not concede that Toia is the better interpretation of the 1990 amendment, and the issue has been the subject of conflicting interpretations as the court acknowledged (see Toia, 334 F.3d at 919-920), the Department recognizes that, because the issue is one of only limited practical significance, it is unlikely that this issue will reach the Supreme Court in the future. In Toia the plea agreement and the entry of the plea agreement occurred prior to the 1990 Act, and the only issu e was the applicability of the 1990 Act. Accordingly, in order to apply a uniform rule in the implementation of section 212(c), the Department will acquiesce in the result of Toia. The final rule is amended to provide that the 1990 amendment barring the availability of section 212(c) relief for aggravated felons who have served a term of at least five years for one or more aggravated felonies will not be applied to bar the eligibility of aliens with respect to any aggravated felony conviction pursuant to a plea agreement that was made prior to November 29, 1990, the date that amendment was enacted. However, the immigration judges and the Board retain the authority to consider the nature and circumstances of any such aggravated felony or felonies as a substantial negative factor weighing against granting relief under former section 212(c) as a matter of discretion. See e.g., Matter of Marin, 16 I&N Dec. 581 (BIA 1978); Matter of Arrequin, 21 I&N Dec. 38 (BIA 1995); Matter of Burbano, 20 I&N Dec. 872 (BIA 1994) ; see also Matter of Jean, 23 I&N Dec. 373 (AG 2002); cf., Matter of Y-L, A-G-, R-S-R-, 23 I&N Dec. 270 (AG 2002).

    In making this change, the Department is limiting its effect to those cases in which the alien was convicted pursuant to a plea agreement. Aliens who were convicted of one or more aggravated felonies after trial, whether before or after the enactment of the Immigration Act of 1990, will continue to be subject to the limitations on eligibility for section 212(c) relief. As discussed above, the Supreme Court in St. Cyr was careful to limit the impact of its decision only to aliens who had entered into a plea agreement, since only those individuals had sufficient reliance interests to be able to insist on the benefit of their bargain. The Ninth Circuit's decision in Toia was based exclusively on the same retroactivity analysis as in St. Cyr, and limited its holding to the availability of section 212(c) relief for “aliens who pleaded guilty with the expectation that they would be eligible for such relief.” 334 F.3d at 920.

    This change is reflected in § 1212.3(f)(4)(ii). This rule also revises the language of § 1212.3(f)(4)(i) to conform to the language of section 212(c) of the Act, regarding aliens who have served a term of imprisonment of five years or more for one or more aggravated felonies.

    Finally, the language of § 1212.3(f)(5) has been clarified. The final rule adjusts the language to specifically cite the relevant statutory provisions to make clear that there must be a statutory counterpart in proceedings under section 237 or former section 241 of the Act for section 212(c) relief to reach those convictions.

G. Applicability of AEDPA

    Several commenters suggested that the proposed rule should be modified so that the date the alien committed the crime rather than the date of conviction is used to determine the applicability of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, 110 Stat. 1214. One commenter asserted that “LPRs * * * had a right to know that they were endangering their entire future with their family in the United States by breaking the law, but the gravity of their acts was impossible to pr edict before the passage of the 1996 laws.” The commenter continued, “[t]hose whose crimes occurred before the enactment of AEDPA face the exact same situation as those who were convicted before that date: they could not have been aware of the immigration consequences of their crimes.”

    The Department disagrees with the commenters. The effect of section 440(d) of AEDPA rendered aliens ineligible for section 212(c) relief if they became deportable for certain criminal convictions. The Department adheres to the interpretation set forth in the proposed rule: “This narrower version of section 212(c) relief is available to aliens who made pleas on or after April 24, 1996, and before April 1, 1997, regardless of when the plea was entered by the court.” 67 FR at 52629. It should be noted that the date of the plea agreement, not the conviction date, is the operative date to determine the availability of section 212(c), as well as the applicability of AEDPA. Thus, if an alien makes a plea agreement on or after April 24, 1996 (the effective date of AEDPA), and before April 1, 1997 (the effective date of IIRIRA), he or she may be eligible for section 212(c) relief, as the plea agreement was made before IIRIRA eliminated this form of relief, but he or she is subject to the narrower version of section 21 2(c) relief as implemented by AEDPA.

    To hold the date the crime was committed as the operational date would be contrary to the St. Cyr decision, as the Court was explicit in preserving the reliance interests of those aliens that made guilty pleas when section 212(c) was still available. See St. Cyr, 533 U.S. at 326 (“We therefore hold that § 212(c) relief remains available for aliens * * * who * * * would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.”). The phrase “under the law then in effect ” clearly conditions the scope of section 212(c) relief that remains available, thereby giving effect to AEDPA and consequently its narrowed availability of section 212(c) relief. Id. Accordingly, the Department will retain the date of the plea agreement as the operational date in determining both the availability and scope of section 212(c) relief for an alien.

H. The Accrual of Seven Consecutive Years of Lawful Unrelinquished Domicile

    Several commenters criticized § 1003.44(b), relating to how the requisite seven years of lawful unrelinquished domicile should be calculated in order to determine eligibility for section 212(c) relief. They asserted that § 1003.44(b)(3) should be amended to provide that an alien must have seven consecutive years of lawful unrelinquished domicile in the United States as determined “at the time the plea was entered,” rather than as of “the date of the final administrative order of deportation or removal.” T hey argued that an alien who did not have the requisite seven years of lawful unrelinquished domicile at the time of making the plea could not have relied upon the availability of section 212(c) relief because he or she would not have been eligible for such relief at that time.

    The Department disagrees with these comments. The Board has long held that an alien's lawful domicile terminates upon the entry of the final administrative order of deportation. See Matter of Cerna, 20 I&N Dec. 399 (BIA 1991). Although Congress has altered a number of provisions of the Act to limit eligibility for relief by the occurrence of specific events, the Department declines the commenters' suggestion to alter the rule in this limited class of cases.