[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

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]