[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR212.3]

[Page 191-192]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
 
PART 212_DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF 
CERTAIN INADMISSIBLE ALIENS; PAROLE--Table of Contents
 
Sec. 212.3  Application for the exercise of discretion under section 
212(c).

    (a) Jurisdiction. An application for the exercise of discretion 
under section 212(c) of the Act shall be submitted on Form I-191, 
Application for Advance Permission to Return to Unrelinquished Domicile, 
to:
    (1) The district director having jurisdiction over the area in which 
the applicant's intended or actual place of residence in the United 
States is located; or
    (2) The Immigration Court if the application is made in the course 
of proceedings under sections 235, 236, or 242 of the Act.
    (b) Filing of application. The application may be filed prior to, at 
the time of, or at any time after the applicant's departure from or 
arrival into the United States. All material facts and/or circumstances 
which the applicant knows or believes apply to the grounds of 
excludability or deportability must be described. The applicant must 
also

[[Page 192]]

submit all available documentation relating to such grounds.
    (c) Decision of the District Director. A district director may grant 
or deny an application for advance permission to return to an 
unrelinquished domicile under section 212(c) of the Act, in the exercise 
of discretion, unless otherwise prohibited by paragraph (f) of this 
section. The applicant shall be notified of the decision and, if the 
application is denied, of the reason(s) for denial. No appeal shall lie 
from denial of the application, but the application may be renewed 
before an Immigration Judge as provided in paragraph (e) of this 
section.
    (d) Validity. Once an application is approved, that approval is 
valid indefinitely. However, the approval covers only those specific 
grounds of excludability or deportability that were described in the 
application. An application who failed to describe any other grounds of 
excludability or deportability, or failed to disclose material facts 
existing at the time of the approval of the application, remains 
excludable or deportable under the previously unidentified grounds. If 
at a later date, the applicant becomes subject to exclusion or 
deportation based upon these previously unidentified grounds or upon new 
ground(s), a new application must be filed with the appropriate district 
director.
    (e) Filing or renewal of applications before an Immigration Judge. 
(1) An application for the exercise of discretion under section 212(c) 
of the Act may be renewed or submitted in proceedings before an 
Immigration Judge under sections 235, 236, or 242 of the Act, and under 
this chapter. Such application shall be adjudicated by the Immigration 
Judge, without regard to whether the applicant previously has made 
application to the district director.
    (2) The Immigration Judge may grant or deny an application for 
advance permission to return to an unrelinquished domicile under section 
212(c) of the Act, in the exercise of discretion, unless otherwise 
prohibited by paragraph (f) of this section.
    (3) An alien otherwise entitled to appeal to the Board of 
Immigration Appeals may appeal the denial by the Immigration Judge of 
this application in accordance with the provisions of Sec. 3.36 of this 
chapter.
    (f) Limitations on discretion to grant an application under section 
212(c) of the Act. A district director or Immigration Judge shall deny 
an application for advance permission to enter under section 212(c) of 
the Act if:
    (1) The alien has not been lawfully admitted for permanent 
residence;
    (2) The alien has not maintained lawful domicile in the United 
States, as either a lawful permanent resident or a lawful temporary 
resident pursuant to section 245A or section 210 of the Act, for at 
least seven consecutive years immediately preceding the filing of the 
application;
    (3) The alien is subject to exclusion from the United States under 
paragraphs (3)(A), (3)(B), (3)(C), or (3)(E) of section 212(a) of the 
Act;
    (4) The alien has been convicted of an aggravated felony, as defined 
by section 101(a)(43) of the Act, and has served a term of imprisonment 
of at least five years for such conviction; or
    (5) The alien applies for relief under section 212(c) within five 
years of the barring act as enumerated in one or more sections of 
section 242B(e) (1) through (4) of the Act.
    (g) Relief for certain aliens who were in deportation proceedings 
before April 24, 1996. Section 440(d) of Antiterrorism and Effective 
Death Penalty Act of 1996 (AEDPA) shall not apply to any applicant for 
relief under this section whose deportation proceedings were commenced 
before the Immigration Court before April 24, 1996.

[56 FR 50034, Oct. 3, 1991, as amended at 60 FR 34090, June 30, 1995; 61 
FR 59825, Nov. 25, 1996; 66 FR 6446, Jan. 22, 2001]