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Irrespective of whether an alien pleaded guilty or proceeded to trial, an alien convicted of a crime involving moral turpitude before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act is eligible for waiver of deportation under § 212 of the Immigration and Naturalization Act.

An Na Peng, a citizen of China and legal permanent resident of the United States, pleaded not guilty to an indictment of one count of conspiracy to defraud the Immigration and Naturalization Service (“INS”). At the time of the indictment, a conviction would not have precluded Peng from applying for waiver of deportation under Immigration and Naturalization Act (“INA”) § 212(c). Peng was found guilty and received probation. While Peng awaited sentencing, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), repealing § 212(c). IIRIRA § 304(b) added a seven-year residency requirement to INA § 212(h), and allowed a legal permanent resident to apply for a waiver of inadmissibility. The Board of Immigration Appeals (“BIA”) affirmed the Immigration Judge’s denial of Peng’s request for a waiver of inadmissibility under § 212(h) and her request for a continuance to apply for waiver of removal under former § 212(c). On appeal, Peng argued that, because she was eligible for § 212(c) relief when she proceeded to trial, applying § 304(b)’s repeal of § 212(c) relief would lead to an impermissible retroactive effect. The Court agreed, finding that § 212(c) is available to aliens who pleaded guilty and proceeded to trial, “if they can plausibly argue that they relied on the availability of relief.” The Court rejected Peng’s argument that § 212(h)’s seven-year residency requirement was “impermissibly applied retroactively to her case,” since her removal proceeding commenced nearly one year after Congress amended § 212(h). Further, in finding a rational basis for § 212(h)’s seven-year residency requirement, the Court denied Peng’s equal protection claim. GRANTED and REMANDED in part; DENIED in part.