Cite as 26 I&N Dec. 254 (BIA 2014)
Agency decision
Ask Donna
What actually matters in this document.
Text
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
Matter of Ezzat H. ABDELGHANY, Respondent
Decided February 28, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A lawful permanent resident who has accrued 7 consecutive years of lawful
unrelinquished domicile in the United States and who is removable or deportable by
virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for
discretionary relief under former section 212(c) of the Immigration and Nationality Act,
8 U.S.C. § 1182(c) (1994), unless: (1) the applicant is subject to the grounds of
inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act,
8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or (2) the applicant has
served an aggregate term of imprisonment of at least 5 years as a result of one or more
aggravated felony convictions entered between November 29, 1990, and April 24, 1996.
(2) A lawful permanent resident who has accrued 7 consecutive years of lawful
unrelinquished domicile in the United States and who is removable or deportable by
virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is
eligible to apply for discretionary relief from removal or deportation under former
section 212(c) of the Act unless: (1) the applicant’s removal or deportation proceedings
commenced on or after April 24, 1996, and the conviction renders the applicant
removable or deportable under one or more of the deportability grounds enumerated in
section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the
grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of
the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5
years as a result of one or more aggravated felony convictions entered between
November 29, 1990, and April 24, 1996.
(3) A lawful permanent resident who is otherwise eligible for relief under former section
212(c) of the Act may apply for such relief in removal or deportation proceedings
without regard to whether the relevant conviction resulted from a plea agreement or a
trial and without regard to whether he or she was removable or deportable under the
law in effect when the conviction was entered.
FOR RESPONDENT: Mumtaz A. Wani, Esquire, Falls Church, Virginia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Justin M. Leone, Assistant
Chief Counsel
AMICI CURIAE: American Immigration Lawyers Association; 1 Federation for
American Immigration Reform2
1
2
Steven W. Manning, Esquire
Michael M. Hethmon, Esquire
254
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
BEFORE: Board Panel: HOLMES, GUENDELSBERGER, and WENDTLAND, Board
Members.
WENDTLAND, Board Member:
In a decision dated June 23, 2011, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien
convicted of an aggravated felony under sections 101(a)(43)(E)(i) and (U)
of the Act, 8 U.S.C. §§ 1101(a)(43)(E)(i) and (U) (2006), based on his 1995
Federal conviction for conspiracy to commit arson in violation of 18 U.S.C.
§§ 371 and 844(i) (1994). The respondent requested relief from removal
under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), but the
Immigration Judge concluded that he was ineligible for a waiver because
the aggravated felony category under which he was charged did not have a
“statutory counterpart” in the grounds of inadmissibility, as required
by 8 C.F.R. § 1212.3(f)(5) (2011) and our precedent decisions. The
respondent has appealed, arguing that the statutory counterpart rule was
misapplied in his case.
During the pendency of the appeal, the Supreme Court decided
Judulang v. Holder, 132 S. Ct. 476 (2011). That decision invalidated our
precedents applying the statutory counterpart rule as “arbitrary and
capricious,” leaving it to us to “devise another, equally economical policy
respecting eligibility for § 212(c) relief.” Id. at 490. In light of Judulang,
we solicited supplemental briefs in which we asked the parties and amici
curiae to provide us with their views as to what test we should adopt for
evaluating the respondent’s eligibility for section 212(c) relief.3
We now conclude that, with a few significant exceptions, a lawful
permanent resident of the United States who has accrued 7 consecutive
years of lawful unrelinquished domicile in this country is eligible to apply
for section 212(c) relief in removal proceedings if he or she is removable by
virtue of a plea or conviction entered before April 1, 1997. Applying this
test, we conclude that the respondent is eligible to apply for a section 212(c)
waiver. Accordingly, the respondent’s appeal will be sustained and the
record will be remanded for further proceedings.
3
We wish to express our gratitude to the parties and amici for their thoughtful briefs.
255
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
I. FACTUAL AND PROCEDURAL HISTORY
The relevant facts are undisputed. The respondent is a native and
citizen of Egypt who was admitted to the United States as a nonimmigrant
in 1986 and became a lawful permanent resident in 1987. In 1995,
pursuant to a guilty plea, the respondent was convicted of conspiracy to
commit arson in violation of 18 U.S.C. §§ 371 and 844(i), for which he was
sentenced to a 24-month term of imprisonment.4
In July 2010 the Department of Homeland Security (“DHS”) initiated
these removal proceedings, alleging that the respondent’s 1995 conviction
renders him removable from the United States as an alien convicted of an
“aggravated felony,” as that term is defined by sections 101(a)(43)(E)(i)
and (U) of the Act.5 The Immigration Judge sustained that charge, which is
not disputed, and denied the respondent’s request for a section 212(c)
waiver, the only form of relief for which he applied. As noted previously,
the Immigration Judge found the respondent ineligible for such relief
based solely on the interpretation in Board precedents of the “statutory
counterpart” rule, which was later invalidated by the Judulang Court.
II. LEGAL BACKGROUND
Since the evolution of section 212(c) relief has been described
elsewhere, most notably in the Supreme Court’s decision in Judulang, we
need not repeat its full history here. Instead, we provide the following
abridged account.
A. Amendment and Repeal of Section 212(c): INS v. St. Cyr
Between 1952 and 1990, section 212(c) of the Act provided in relevant
part that
[a]liens lawfully admitted for permanent residence who temporarily proceeded
abroad voluntarily and not under an order of deportation, and who are returning
to a lawful unrelinquished domicile of seven consecutive years, may be admitted
in the discretion of the Attorney General without regard to [their excludability
under section 212(a) of the Act].
4
The respondent’s 24-month sentence was subsequently reduced to a term of 6 months
pursuant to Rule 35 of the Federal Rules of Criminal Procedure.
5
Section 101(a)(43)(E)(i) of the Act defines the term “aggravated felony” to include
“an offense described in . . . [18 U.S.C. § 844(i)],” and section 101(a)(43)(U)
encompasses certain conspiracy convictions.
256
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
Beginning in 1990, Congress placed a series of increasingly strict limits on
the availability of section 212(c) relief for lawful permanent residents with
criminal convictions. The first such limitation made section 212(c) relief
unavailable to anyone who had served an aggregate term of imprisonment
of at least 5 years as a result of one or more aggravated felony convictions.
See Immigration Act of 1990, Pub. L. No. 101-649, § 511(a), 104 Stat.
4978, 5052 (effective Nov. 29, 1990) (“IMMACT 90”), as amended by
Miscellaneous and Technical Immigration and Naturalization Amendments
of 1991, Pub. L. No. 102-232, § 306(a)(10), 105 Stat. 1733, 1751 (effective
as if included in IMMACT 90).
In 1996, that prohibition was expanded to cover all lawful permanent
residents who were “deportable” based on convictions for a broad set of
offenses, including aggravated felonies, drug convictions, firearm offenses,
and certain convictions for crimes involving moral turpitude. See
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, § 440(d), 110 Stat. 1214, 1277 (effective Apr. 24, 1996)
(“AEDPA”). Finally, less than 1 year after AEDPA went into effect,
Congress repealed section 212(c) in its entirety. See Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No.
104-208, § 304(b), 110 Stat. 3009-546, 3009-597 (effective Apr. 1, 1997)
(“IIRIRA”).6
The foregoing amendments—which first limited and then repealed
section 212(c)—prompted a great deal of administrative litigation,
primarily concerned with defining the amendments’ proper temporal scope.
That litigation culminated in Matter of Soriano, 21 I&N Dec. 516, 533−40
(BIA 1996; A.G. 1997), in which the Attorney General determined that
applying section 440(d) of the AEDPA to foreclose applications for section
212(c) relief that were pending on AEDPA’s effective date had no
impermissible retroactive effect. In 2001, however, the Supreme Court
held that in view of the presumption against statutory retroactivity, Ҥ 212(c)
relief remains available for aliens . . . whose convictions were obtained
through plea agreements and who, notwithstanding those convictions,
would have been eligible for § 212(c) relief at the time of their plea under
the law then in effect.” INS v. St. Cyr, 533 U.S. 289, 326 (2001).
6
The elimination of section 212(c) relief was accompanied by the creation of a new
form of discretionary relief—cancellation of removal for lawful permanent residents—
which is not available to lawful permanent residents with aggravated felony convictions.
IIRIRA § 304(a)(3), 110 Stat. at 3009-594. Cancellation of removal for lawful
permanent residents is codified at section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2012).
257
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
B. “Statutory Counterpart” Rule and Judulang
Various issues relating to the availability of section 212(c) relief
nevertheless remained. The text of section 212(c) has always been framed
in terms of the “admission” of lawful permanent residents who are
returning to the United States after traveling abroad. In the 1970s, however,
judicial and administrative determinations relying on constitutional
considerations resulted in the extension of section 212(c) relief to many
lawful permanent residents who had never left the United States—and thus
were not seeking “admission,” either currently or nunc pro tunc—and who
were “deportable” based on conduct similar to that described in the grounds
of exclusion at section 212(a) of the Act. See, e.g., Francis v. INS, 532
F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I&N Dec. 26 (BIA 1976).7
The expansion of section 212(c) beyond its text has presented difficult
line-drawing problems for the Board over the years. See Judulang
v. Holder, 132 S. Ct. at 488−89. In the wake of St. Cyr, however, the
Attorney General declared by means of a regulation that section 212(c)
relief was unavailable to any lawful permanent resident who was deportable
or removable “on a ground which does not have a statutory counterpart in
section 212 of the Act.” 8 C.F.R. § 1212.3(f)(5); see also Executive Office
for Immigration Review; Section 212(c) Relief for Aliens With Certain
Criminal Convictions Before April 1, 1997, 69 Fed. Reg. 57,826,
57,831−32 (Sept. 28, 2004) (Supplementary Information). Applying that
regulation, we issued two precedents holding that lawful permanent
residents who were deportable under the “sexual abuse of a minor” and
“crime of violence” aggravated felony categories—sections 101(a)(43)(A)
and (F) of the Act, respectively—were ineligible for section 212(c) relief
because those categories lacked substantially equivalent statutory
counterparts in the inadmissibility grounds. Matter of Brieva, 23 I&N Dec.
766 (BIA 2005) (crime of violence); Matter of Blake, 23 I&N Dec. 722
(BIA 2005) (sexual abuse of a minor).
As discussed, the Judulang Court invalidated as “arbitrary and
capricious” the understanding of the statutory counterpart rule embodied in
Brieva and Blake, but it did not preclude us from fashioning an alternative
rule, “so long as it comports with everything held in both this decision and
St. Cyr.” Judulang v. Holder, 132 S. Ct. at 490. Our initial task, then, is to
determine what Judulang and St. Cyr require.
7
With the passage of IIRIRA, the former grounds of “exclusion” came to be identified
as grounds of “inadmissibility.”
258
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
C. Lessons of St. Cyr and Judulang
A guiding principle underlying St. Cyr is that Congress did not express
a clear intention that the AEDPA and IIRIRA amendments relating to
section 212(c) would operate in a manner that would have a “retroactive
effect.” Thus, denying section 212(c) relief to a lawful permanent resident
on the basis of those amendments is impermissible if such denial “attaches
a new disability, in respect to transactions or considerations already past.”
INS v. St. Cyr, 533 U.S. at 321 (quoting Landgraf v. USI Film Products,
511 U.S. 244, 269 (1994)) (internal quotation mark omitted). In the wake
of St. Cyr, the Supreme Court has also clarified that an alien challenging
the allegedly retroactive application of an amendment to the Act is not
required to prove that he actually relied on prior law when structuring his
conduct. Vartelas v. Holder, 132 S. Ct. 1479, 1490−91 (2012).
The fundamental lesson of Judulang is that a deportable lawful
permanent resident cannot be declared ineligible for section 212(c) relief on
the basis of mechanical distinctions arising from the structure of the
immigration statute. Instead, any distinction drawn between two different
classes of removable lawful permanent residents “must be tied, even if
loosely, to the purposes of the immigration laws or the appropriate
operation of the immigration system.” Judulang v. Holder, 132 S. Ct. at
485. Ultimately, this means that any approach to section 212(c) eligibility
that places one removable lawful permanent resident in a less advantageous
position than another must embody a rational judgment regarding the
individuals’ relative “fitness to remain in the country.” Id.
III. ANALYSIS
After St. Cyr and Judulang, the basic question remains: which
deportable lawful permanent residents may apply for section 212(c) relief?
In all its various iterations, the statutory language of section 212(c) has
limited the availability of relief to individuals who are “aliens lawfully
admitted for permanent residence” who have accrued at least 7 consecutive
years of “lawful unrelinquished domicile” in the United States. Section
212(c) of the Act. Those requirements remain in effect. See 8 C.F.R.
§ 1212.3(f)(1)−(2).8 Further, section 212(c) relief is unavailable to those
8
The requirement that an applicant for section 212(c) relief be an alien
“lawfully admitted for permanent residence” means that such relief is unavailable
to individuals who obtained lawful permanent resident status by fraud or who
otherwise lacked entitlement to it. See, e.g., Matter of T-, 6 I&N Dec. 136, 137−38
(BIA, A.G. 1954); see also Monet v. INS, 791 F.2d 752, 753−54 (9th Cir. 1986);
(continued . . .)
259
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
who have engaged in terrorism, espionage, sabotage, or other acts that are
incompatible with the vital national security interests of the United States.
In practice, this limitation excludes individuals whose conduct makes them
inadmissible under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the
Act.9 See 8 C.F.R. § 1212.3(f)(3).
Following the IMMACT 90 amendments, section 212(c) relief also
remains unavailable to the class of individuals who were convicted of one
or more aggravated felonies between November 29, 1990, and April 24,
1996, and who have served for such felony or felonies an aggregate term of
imprisonment of at least 5 years. See, e.g., Lawrence v. Holder, 717 F.3d
1036, 1039−41 (9th Cir. 2013); Lupera-Espinoza v. Att’y Gen. of U.S., 716
F.3d 781, 786−88 (3d Cir. 2013); Perriello v. Napolitano, 579 F.3d 135,
142−43 (2d Cir. 2009); Fernandes Pereira v. Gonzales, 417 F.3d 38, 44−46
(1st Cir. 2005). 10 Further, section 440(d) of the AEDPA requires that
section 212(c) relief be denied to anyone whose plea or conviction was
entered between April 24, 1996, and April 1, 1997, and “who is deportable
by reason of having committed any criminal offense covered in section
237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section
237(a)(2)(A)(ii) for which both predicate offenses are, without regard to the
date of their commission, otherwise covered by section 237(a)(2)(A)(i).”
See, e.g., Moreno-Bravo v. Gonzales, 463 F.3d 253, 264 (2d Cir. 2006).
See generally Matter of Fortiz, 21 I&N Dec. 1199 (BIA 1998).11 Finally,
_______________________________
Matter of Longstaff, 716 F.2d 1439, 1441−42 (5th Cir. 1983); cf. Matter of Koloamatangi,
23 I&N Dec. 548, 549−51 (BIA 2003) (addressing cancellation of removal).
9
Section 212(a)(3)(A) pertains to any individual who a consular officer or the Attorney
General knows or has reasonable ground to believe is seeking to enter the United States
to engage in espionage, sabotage, political subversion, and the like. Section 212(a)(3)(B)
covers terrorists and those affiliated with terrorist organizations. Section 212(a)(3)(C)
covers individuals whose presence in the United States would, in the reasonable
judgment of the Secretary of State, have adverse foreign policy consequences. Section
212(a)(3)(E) relates to participants in genocide, torture, extrajudicial killings, or Nazi
persecution. Section 212(a)(10)(C), which was at section 212(a)(9)(C) of the Act prior to
the repeal of section 212(c), covers individuals who have engaged in acts of international
child abduction.
10
This prohibition is inapplicable by regulation to any aggravated felony conviction
resulting from a plea agreement made before November 29, 1990. See 8 C.F.R.
§ 1212.3(f)(4)(ii); see also Toia v. Fasano, 334 F.3d 917, 919−21 (9th Cir. 2003).
11
However, the AEDPA and IIRIRA amendments to section 212(c) are inapplicable—
irrespective of St. Cyr—to any alien who is in deportation proceedings that commenced
prior to April 24, 1996. See IIRIRA § 309(c)(1), 110 Stat. at 3009-625; see also 8 C.F.R.
§ 1212.3(g). Further, IIRIRA’s repeal of section 212(c) is inapplicable to any alien in
deportation proceedings, even if those proceedings commenced after April 24, 1996, and
even where a conviction providing a basis (or an additional basis) for deportability was
(continued . . .)
260
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
section 212(c) relief is unavailable to any individual in post-IIRIRA
removal proceedings who is removable by virtue of pleas or convictions
entered on or after April 1, 1997. See, e.g., Perez v. Elwood, 294 F.3d 552,
562 (3d Cir. 2002).
In seeking to establish eligibility criteria for lawful permanent residents
who are not subject to the foregoing limitations, we are guided by the
lessons of Judulang and St. Cyr. That is, we must avoid standards that
arbitrarily exclude people from eligibility for relief without regard to their
relative “fitness to remain in the United States” while also taking care to
avoid applying the AEDPA or IIRIRA amendments in a manner that would
have an impermissible retroactive effect. Judulang v. Holder, 132 S. Ct. at
485. Our present task is to determine how these lessons should be
implemented in actual cases.
A. “Fitness To Remain in the United States”
In response to our supplemental briefing request, the parties and amici
have proposed several competing standards for identifying those deportable
lawful permanent residents whom we should deem “fit[] to remain in the
United States” as applicants for section 212(c) relief. Id. We address the
merits of each proposed standard in turn.
1. Blake v. Carbone Approach
In his supplemental brief, the respondent urges us to adopt the approach
embodied in Blake v. Carbone, 489 F.3d 88, 101−03 (2d Cir. 2007), in
which the United States Court of Appeals for the Second Circuit held that
section 212(c) relief is available to an otherwise eligible applicant if his
conviction would render a similarly situated person inadmissible
under section 212(a) of the Act, irrespective of whether the pertinent
inadmissibility ground is precisely a “counterpart” of or “comparable” to
the deportability ground under which the applicant is charged. Because of
the categories specified under the criminal grounds of removability, this
approach often requires a deportable lawful permanent resident to show that
his offense is covered by section 212(a)(2)(A)(i)(I) of the Act, the
inadmissibility ground that pertains to a crime (or crimes) involving moral
turpitude.
_______________________________
entered on or after April 1, 1997. See, e.g., Pascua v. Holder, 641 F.3d 316 (9th Cir.
2011). Further still, the AEDPA amendments do not apply to aliens in pre-IIRIRA
exclusion proceedings. See Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997).
261
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
The application of Blake v. Carbone would perhaps be straightforward
in most cases. Indeed, applying that approach to the present facts
would probably lead to the uncomplicated conclusion that the respondent
is eligible for section 212(c) relief, since his offense of conviction—
conspiracy to commit arson—is likely a crime involving moral turpitude
under section 212(a)(2)(A)(i)(I) of the Act. See Da Silva Neto v. Holder,
680 F.3d 25 (1st Cir. 2012) (holding that malicious destruction of property
under Massachusetts law is a crime involving moral turpitude);
Vuksanovic v. U.S. Att’y Gen., 439 F.3d 1308 (11th Cir. 2006) (holding that
second-degree arson under Florida law is a crime involving moral
turpitude). As the DHS and amici point out in their briefs, however, this
approach has some drawbacks.
The Blake v. Carbone approach has some of the same mechanical
features as the statutory counterpart rule, placing deportable lawful
permanent residents in the position of having to squeeze their deportable
offenses into often ill-fitting grounds of inadmissibility. As a result,
application of this approach can lead to the denial of relief for reasons that
turn on the structure of the immigration law but that do not relate to the
applicant’s objective “fitness” to remain in the United States. A few brief
examples serve to illustrate the point.
Some convictions for a crime involving moral turpitude that render
aliens deportable do not render them inadmissible because of the “petty
offense exception” in section 212(a)(2)(A)(ii)(II) of the Act. See Matter of
Cortez, 25 I&N Dec. 301 (BIA 2010). Under a faithful reading of Blake
v. Carbone, some lawful permanent residents who are deportable for such
convictions would thus be ineligible for section 212(c) relief solely because
their crimes are too minor to render a similarly situated alien inadmissible.
Likewise, lawful permanent residents who are deportable under section
237(a)(2)(C) of the Act on the basis of relatively minor convictions for
firearms possession would be ineligible for a section 212(c) waiver under
the Second Circuit’s test because such crimes are not turpitudinous. See
Matter of Granados, 16 I&N Dec. 726 (BIA 1979) (holding that carrying a
concealed firearm is not a crime involving moral turpitude), aff’d, 624 F.2d
191 (9th Cir. 1980). But lawful permanent residents who actually use
firearms to inflict or threaten harm to victims would be eligible for relief
because the violent character of their crimes would serve to “elevate” them
to the level of crimes involving moral turpitude. See Matter of Medina,
15 I&N Dec. 611 (BIA 1976) (holding that assault with a deadly weapon is
a crime involving moral turpitude), aff’d, 547 F.2d 1171 (7th Cir. 1977).
Moreover, some lawful permanent residents are deportable based on
convictions for aggravated felony “theft offenses” that would not render
similarly situated aliens inadmissible for crimes involving moral turpitude
262
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
because the convictions arose under statutes encompassing a temporary
taking of property. See Matter of V-Z-S-, 22 I&N Dec. 1338, 1350 n.12
(BIA 2000) (noting that temporary takings qualify as “theft offenses” even
though they have traditionally not been considered turpitudinous).
It would be incongruous to exclude a deportable lawful permanent
resident from eligibility for relief on the ground that his crime is not serious
or turpitudinous enough to render a similarly situated alien inadmissible.
Indeed, an approach to section 212(c) eligibility that would exclude only
the least culpable offenders from relief cannot be said to have a rational
connection to the goals or purposes of the immigration system. See
Judulang v. Holder, 132 S. Ct. at 485 (“[T]he BIA’s approach must be tied,
even if loosely, to the purposes of the immigration laws or the appropriate
operation of the immigration system.”).
2. Abebe v. Mukasey Approach
In its amicus brief, the Federation for American Immigration Reform
(“FAIR”) expresses the view that the Supreme Court’s decision in Judulang
militates in favor of a strict textual interpretation of section 212(c). FAIR
thus supports a “clean slate” approach similar to that adopted by the Ninth
Circuit in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc) (per
curiam), which held that the Constitution does not require that section
212(c) relief be made available to any deportable lawful permanent
residents. There are several insurmountable obstacles to our adoption of
the Abebe approach.
First, as we noted in Matter of Moreno-Escobosa, 25 I&N Dec. 114
(BIA 2009), the Attorney General has promulgated a regulation that
authorizes many deportable lawful permanent residents to seek section
212(c) waivers. 8 C.F.R. § 1212.3. That regulation has the force and effect
of law as to this Board, so we are bound to effectuate it absent a contrary
directive from a reviewing court or the Attorney General. See Matter of
Fede, 20 I&N Dec. 35, 36 (BIA 1989); see also Pascua v. Holder, 641 F.3d
316, 319 n.2 (9th Cir. 2011) (stating that Abebe did not undermine the
validity of regulations extending section 212(c) relief to the deportation
context).
FAIR maintains that Judulang has undermined the rationale of
Moreno-Escobosa by casting doubt on the validity of 8 C.F.R. § 1212.3.
We disagree. The Supreme Court’s decision in Judulang affected 8 C.F.R.
§ 1212.3(f)(5), which contains the “statutory counterpart” requirement, but
the regulation as a whole is presumed to be severable from that provision,
because it remains “‘fully operative’ and workable administrative
machinery” even if the statutory counterpart requirement (or an aspect of it)
is deleted. INS v. Chadha, 462 U.S. 919, 934−35 (1983) (discussing the
263
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
severability of statutes). Since 8 C.F.R. § 1212.3 has not been abrogated
through the regulatory process or invalidated in its entirety by the Supreme
Court or any circuit court of appeals, we must follow it to the extent we can.
Our reluctance to adopt the Abebe approach is “further influenced by the
presumption that the Federal immigration laws are intended to have
uniform nationwide application and to implement a unitary Federal policy.”
Matter of Velazquez-Herrera, 24 I&N Dec. 503, 508 (BIA 2008). We
would face an obstacle to adopting the Abebe approach as a nationwide
administrative rule, even if the regulations permitted us to, because that
approach may well conflict with the Second Circuit’s constitutional rulings
in Blake v. Carbone and Francis v. INS. Because the Second Circuit has
already held that denial of section 212(c) relief would pose serious
constitutional problems for deportable lawful permanent residents whose
offenses are encompassed by the grounds of inadmissibility, we arguably
are not free to adopt FAIR’s proposed interpretation in Second Circuit
cases. Cf. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568, 575−78 (1988) (holding that the imperative
of constitutional avoidance trumps traditional principles of administrative
deference).
Finally, declaring virtually all deportable lawful permanent residents
ineligible for section 212(c) relief would constitute an abrupt departure
from more than 30 years of established practice and would prejudicially
upset the reasonable expectations of a great many individuals. See SEC
v. Chenery Corp., 332 U.S. 194, 203 (1947); ARA Servs., Inc. v. NLRB,
71 F.3d 129, 135−36 & n.3 (4th Cir. 1995); Retail, Wholesale and Dep’t
Store Union, AFL-CIO v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972).
3. Hernandez-Casillas Approach
The American Immigration Lawyers Association (“AILA”) urges us
to adopt an approach similar to that we espoused in Matter of
Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991). In that
1990 case, we broadened the availability of section 212(c) relief by making
it “applicable to all grounds of deportability with the exception of those
comparable to the exclusion grounds expressly excluded by section 212(c)
[such as those relating to terrorists, saboteurs, and war criminals], rather
than limiting it, as now, to grounds of deportability having equivalent
exclusion provisions.” Id. at 266. That broader approach, we noted, was
no less “logical” than limiting section 212(c) relief to aliens covered by
grounds of deportability having “equivalent” exclusion provisions and had
“the benefit of alleviating potential hardships to sometimes deserving
aliens.” Id. However, in 1991, the Attorney General overruled our
decision in Hernandez-Casillas in favor of an approach to section 212(c)
264
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
eligibility that more closely resembled the “statutory counterpart” rule. Id.
at 280−93.
4. The Approach We Now Adopt
After careful consideration of intervening developments, we conclude
that an approach resembling the one we adopted in Hernandez-Casillas is
the only option that allows us to fully implement the Judulang Court’s
mandate. Alone among the available alternatives, it places inadmissible
and deportable lawful permanent residents on a truly level playing field
while disregarding mechanical distinctions that arise from the statutory
structure and that bear no relation either to deportable aliens’ fitness to
remain in this country or to the overall purposes of the immigration laws.
Importantly, moreover, it provides applicants, attorneys, and adjudicators
with a straightforward test of eligibility for relief that is far better adapted
to the “streamlined” nature of removal proceedings than any of the
plausible alternatives.
We recognize that this approach is in tension with the regulatory
“statutory counterpart” requirement of 8 C.F.R. § 1212.3(f)(5), as well as
with the Attorney General’s understanding of that requirement, which is
reflected in his own Hernandez-Casillas decision and the Supplementary
Information accompanying the promulgation of the regulation. See 69 Fed.
Reg. at 57,831−32. Regulations and precedents of the Attorney General are
ordinarily binding upon us. See, e.g., Matter of E-L-H-, 23 I&N Dec. 814
(BIA 2005); Matter of Ponce De Leon, 21 I&N Dec. 154, 158−59 (BIA
1996). But in this instance, those authorities embody an understanding of
the law that has been superseded by the Supreme Court’s intervening
decision in Judulang. 12 We therefore conclude that we must reevaluate the
proper approach to section 212(c) eligibility de novo in view of the criteria
and instructions set forth by the Supreme Court. We are obligated to
12
Citing the Attorney General’s decision in Hernandez-Casillas as supporting authority,
the Supplementary Information accompanying the section 212(c) regulations at 8 C.F.R.
§ 1212.3 endorsed as “correct” a commenter’s view that “an alien charged and found
deportable as an aggravated felon is not eligible for section 212(c) relief ‘if there is no
comparable ground of inadmissibility for the specific category of aggravated felony
charged.’” 69 Fed. Reg. at 57,831 (Supplementary Information). As examples of
categories that lacked the requisite “comparable ground,” it identified “sexual abuse of a
minor” and “crime of violence”—the aggravated felonies at issue in Matter of Blake,
23 I&N Dec. at 722, and Matter of Brieva, 23 I&N Dec. at 766. Id. Thus, the
Supplementary Information characterizes the Attorney General’s decision in
Hernandez-Casillas as reflecting an understanding of the statutory counterpart rule that
we are no longer able to apply because it is incompatible with Judulang.
265
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
implement the Supreme Court’s mandate in lieu of any arguably conflicting
authorities that would otherwise bind us.
In light of the foregoing, we now hold that otherwise qualified
applicants may apply for section 212(c) relief in removal proceedings to
waive any ground of deportability, unless the applicant is subject to the
grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or
(10)(C) of the Act. See 8 C.F.R. § 1212.3(f)(3).
B. Retroactivity
Our adoption of the foregoing eligibility criteria should eliminate most
arbitrary and capricious distinctions between lawful permanent residents,
but it is not the end of the story because section 212(c) relief remains
available in post-IIRIRA removal proceedings (or in pre-IIRIRA
deportation proceedings in which AEDPA would otherwise preclude relief)
only where the pertinent lawful permanent resident’s subjection to the
AEDPA and IIRIRA amendments would attach a “new disability, in respect
to transactions or considerations already past.” INS v. St. Cyr, 533 U.S. at
321 (citation omitted). The following discussion establishes uniform
standards for identifying those lawful permanent residents.
1. Plea Versus Trial
The alien in St. Cyr entered a pre-AEDPA guilty plea to an offense that
rendered him deportable (but eligible for a section 212(c) waiver) at the
time of conviction. Thus it is settled that AEDPA’s restriction of section
212(c) relief and IIRIRA’s subsequent repeal of that section cannot be
applied to individuals in that specific posture, most of whom would have
had good reason to rely on the availability of a section 212(c) waiver when
deciding whether a plea was in their best interest. Consensus becomes
more elusive, however, as the reliance-based interests of individual
applicants become less obvious.
By its literal terms, the St. Cyr Court’s holding applied only to
“aliens . . . whose convictions were obtained through plea agreements and
who, notwithstanding those convictions, would have been eligible for
§ 212(c) relief at the time of their plea under the law then in effect.”
INS v. St. Cyr, 533 U.S. at 326 (emphasis added). Noting that “[p]lea
agreements involve a quid pro quo between a criminal defendant and the
government,” the St. Cyr Court determined that “preserving the possibility
of [section 212(c)] relief would have been one of the principal benefits
sought by defendants deciding whether to accept a plea offer or instead to
proceed to trial.” Id. at 321, 323.
266
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
The St. Cyr Court’s focus on the contractual nature of plea agreements
has led some reviewing courts to conclude that the AEDPA and IIRIRA
amendments have no impermissible retroactive effect on individuals who
were convicted of deportable offenses after trial, on the theory that such
individuals cannot demonstrate detrimental reliance on the potential
availability of section 212(c) relief. See, e.g., Kellermann v. Holder, 592
F.3d 700, 705−07 (6th Cir. 2010); Ferguson v. U.S. Att’y Gen., 563 F.3d
1254, 1271 (11th Cir. 2009). Initially, the Attorney General promulgated a
set of 2004 regulatory amendments to 8 C.F.R. § 1212.3 that implemented
St. Cyr by categorically declaring section 212(c) relief unavailable
under that regulatory provision to any individual convicted after trial. 13
See 69 Fed. Reg. at 57,828, 57,835 (codified at 8 C.F.R. § 1212.3(h)).
Subsequently, a series of decisions by various courts further developed this
issue.
The Second Circuit, which initially declared section 212(c) relief
unavailable to lawful permanent residents with trial-based convictions,
subsequently refined its jurisprudence by holding that the retroactivity of
the AEDPA and IIRIRA amendments must be assessed case by case where
the applicant was convicted after a trial, with the burden being on the
applicant to demonstrate that he actually relied on the availability of section
212(c) relief when deciding to go to trial. See Walcott v. Chertoff, 517 F.3d
149, 154−55 (2d Cir. 2008).
The Third, Eighth, and Tenth Circuits have taken a different approach,
concluding that the AEDPA and IIRIRA amendments were impermissibly
retroactive vis-à-vis aliens who went to trial before April 24, 1996, without
regard to subjective reliance. See Lovan v. Holder, 574 F.3d 990, 993−94
(8th Cir. 2009); Hem v. Maurer, 458 F.3d 1185, 1199−1200 (10th Cir.
2006); Ponnapula v. Ashcroft, 373 F.3d 480, 494−96 (3d Cir. 2004).
Indeed, the Third Circuit has concluded that the main focus of the
retroactivity analysis is not reliance at all but simply whether a statute
attaches new legal consequences to past events. The court viewed potential
reliance as only one element to consider in ascertaining whether a “new
disability” exists. See Atkinson v. Att’y Gen. of U.S., 479 F.3d 222, 227−29
(3d Cir. 2007); see also Olatunji v. Ashcroft, 387 F.3d 383, 388−95 (4th Cir.
2004) (holding, outside the section 212(c) context, that the presumption
against statutory retroactivity applies without regard to objective or
subjective reliance, and stating that while the presumption against
retroactivity serves reliance interests, it does not make reliance a
13
The respondent was convicted by means of a plea agreement. We nevertheless
address the impact of St. Cyr upon individuals convicted after trial in order to provide a
uniform nationwide rule.
267
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
requirement). Accordingly, in Atkinson the Third Circuit held that the
repeal of section 212(c) was impermissibly retroactive as applied to a
lawful permanent resident convicted after a pre-AEDPA trial, even though
he had never been offered a plea agreement. Atkinson v. Att’y Gen. of U.S.,
479 F.3d at 230−31.
The Supreme Court has not directly reviewed any of the circuit
courts’ decisions addressing the retroactivity of the AEDPA and IIRIRA
amendments as applied to lawful permanent residents convicted after trial.
However, the Court has issued Vartelas, in which it cited Olatunji and
Ponnapula with approval and unequivocally stated that “the presumption
against retroactive application of statutes does not require a showing of
detrimental reliance.” Vartelas v. Holder, 132 S. Ct. at 1491. The Vartelas
Court acknowledged that an objective “likelihood of reliance on prior law
strengthens the case for reading a newly enacted law prospectively” but
stated that such a likelihood is “not a necessary predicate for invoking the
antiretroactivity principle.” Id. (citing Olatunji v. Ashcroft, 387 F.3d
at 393).
In the wake of Vartelas, the Fifth and Ninth Circuits have joined the
Third, Eighth, and Tenth in holding that lawful permanent residents who
sustained trial-based, pre-AEDPA convictions are now eligible to apply for
section 212(c) relief whether or not they can show actual subjective reliance
on prior law. See Cardenas-Delgado v. Holder, 720 F.3d 1111, 1117−21
(9th Cir. 2013); Carranza-De Salinas v. Holder, 700 F.3d 768, 773−75 (5th
Cir. 2012). The Ninth Circuit has stated that after Vartelas it is not
necessary to prove any type of reliance in order to demonstrate that a
civil statute’s application is impermissibly retroactive. Cardenas-Delgado
v. Holder, 720 F.3d at 1119.
Under the circumstances, we are convinced that Supreme Court and
emerging circuit court precedent has superseded the regulatory prohibition
against granting section 212(c) relief under St. Cyr to aliens convicted after
trial.
Therefore, Immigration Judges nationwide should now treat
deportable lawful permanent residents convicted after trial no differently
for purposes of section 212(c) eligibility than deportable lawful permanent
residents convicted by means of plea agreements.14 In view of the Vartelas
14
We recognize that several of the Federal courts of appeals that initially
declared section 212(c) relief unavailable to aliens convicted after trial have not yet
had occasion to revisit the issue in light of Vartelas. However, all but one of those
courts’ decisions were premised on the assumption that the application of a new
statute is impermissibly retroactive only where the party invoking the antiretroactivity
principle has a reliance-based interest in the application of prior law. See, e.g.,
Kellermann v. Holder, 592 F.3d at 707; Ferguson v. U.S. Att’y Gen., 563 F.3d at 1271;
(continued . . .)
268
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
Court’s determination that the presumption against retroactive application
of statutes does not require a showing of detrimental reliance, moreover, we
conclude that a lawful permanent resident convicted after trial need not
demonstrate that he acted or could have acted (or refrained or could have
refrained from acting) in reliance on the availability of section 212(c) relief
when structuring his conduct. All that is required under St. Cyr and
Vartelas is a showing that the AEDPA or IIRIRA amendments attached a
“new disability” to pleas or convictions occurring before their effective
dates.15
_______________________________
Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004); Rankine v. Reno, 319 F.3d
93, 100 (2d Cir. 2003); Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002). Because Vartelas
has since clarified that no such reliance requirement exists, we consider those decisions
superseded by the Supreme Court’s most recent pronouncement.
In Chambers v. Reno, 307 F.3d 284, 292 (4th Cir. 2002), a three-judge panel of the
Fourth Circuit left open the possibility that a statute may have an impermissible
retroactive effect, even as to those who did not detrimentally rely on prior law. But two
judges nonetheless held (over a dissent) that Chambers could not invoke the
antiretroactivity presumption because the repeal of section 212(c) did not attach a new
legal consequence to his decision to go to trial. Id. at 293. We conclude that the court’s
emphasis on Chambers’ strategic decision to go to trial has also been superseded by
Vartelas, which made clear that the “essential inquiry” for antiretroactivity purposes is
not whether a new law attaches unanticipated consequences to preenactment decisions,
but simply “whether the new provision attaches new legal consequences to events
completed before its enactment.” Vartelas v. Holder, 132 S. Ct. at 1491 (emphasis
added) (quoting Landgraf v. USI Film Products, 511 U.S. at 270) (internal quotation
marks omitted). Whether it resulted from a plea or a trial, a conviction entered before
April 1, 1997, is an “event completed” before IIRIRA’s effective date.
15
Although a conviction by plea is not required, in cases where an applicant for section
212(c) relief was convicted by plea, as here, the version of the statute that applies to the
applicant is determined by reference to the date when the plea agreement was made. INS
v. St. Cyr, 533 U.S. at 326 (holding “that § 212(c) relief remains available for aliens, like
respondent, whose convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible for § 212(c) relief at the
time of their plea under the law then in effect”); see also 8 C.F.R. § 1212.3(h)(1)−(2).
Thus, an applicant who was convicted of a removable offense on May 1, 1996, based on
a guilty plea entered on April 20, 1996, would not be subject to the bar imposed by
section 440(d) of the AEDPA, because the plea preceded AEDPA’s effective date.
Likewise, a person convicted of a removable offense on April 10, 1997, based on a guilty
plea entered on March 27, 1997, may remain eligible for section 212(c) relief—despite
the fact that the conviction was entered after that section’s repeal—because the
underlying plea agreement was made while section 212(c) remained in effect (as
amended by section 440(d) of the AEDPA). In such cases, the applicant will have the
burden of proving the date when the plea agreement was made.
269
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
2. Deportable “at the Time of Conviction”?
In its supplemental brief, the DHS argues that the AEDPA and IIRIRA
amendments are impermissibly retroactive only with respect to lawful
permanent residents whose pre-AEDPA or pre-IIRIRA convictions
rendered them both deportable and excludable under the law in effect at the
time of conviction. In the DHS’s view, those individuals are the only ones
who were entitled to rely on the potential availability of section 212(c)
relief in a manner that would give rise to retroactivity concerns. However,
we decline to require a showing of deportability at the time of conviction,
for three main reasons.
First, such a requirement would necessarily be founded on the premise
that a new statute has an impermissible retroactive effect only upon those
individuals who relied on prior law. As we just explained, however, the
Supreme Court has now determined that a “likelihood of reliance on
prior law” is “not a necessary predicate for invoking the antiretroactivity
principle.” Vartelas v. Holder, 132 S. Ct. at 1491. Instead, the pertinent
question for retroactivity purposes is simply whether the AEDPA and
IIRIRA amendments created a new legal disability in respect to
preenactment events. For lawful permanent residents who are deportable
on the basis of pre-AEDPA convictions, AEDPA and IIRIRA plainly
created a new disability, regardless of when the convictions rendered them
deportable, by eliminating the prospect of section 212(c) relief. While the
prospect of such relief was undoubtedly more contingent for some
individuals with pre-AEDPA convictions than for others, this fact is not
determinative of the retroactivity question. See An Na Peng v. Holder, 673
F.3d 1248, 1257 (9th Cir. 2012); Ponnapula v. Ashcroft, 373 F.3d at
495−96.
Second, such a requirement cannot be squared with United States
v. Leon-Paz, 340 F.3d 1003, 1006−07 (9th Cir. 2003), in which the Ninth
Circuit held that the repeal of section 212(c) was impermissibly retroactive
vis-à-vis a lawful permanent resident who was convicted in 1995 of an
offense that did not render him deportable until 1996, when it was
classified an aggravated felony. As the court explained, Leon-Paz “had two
bulwarks to protect himself against attacks on his residence in this country”
at the time of his conviction: “The first was the fact that he had pled to a
crime that was below the aggravated felony threshold, and the second was
§ 212(c) itself in case the definition of aggravated felony changed as it
often had and has.” Id. at 1006. Although the first bulwark was admittedly
torn down by IIRIRA’s amendment to the aggravated felony definition
(which Congress made explicitly retroactive), the second bulwark remained
intact because, as the Supreme Court determined in St. Cyr, Congress had
270
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
not expressed a clear intention that the repeal of section 212(c) would have
retroactive effect.
Third, and finally, requiring an exclusive focus on the law in effect at
the time of conviction would be unmanageable in practice. It would require
Immigration Judges to engage in an extraordinarily burdensome and
imprecise historical inquiry involving the reconstruction of complex legal
regimes that have not existed for decades. An example illustrates the
problem.
Today, aliens are commonly placed in removal proceedings on the basis
of rehabilitative dispositions that do not qualify as “convictions” under
State law. See, e.g., Matter of Roldan, 22 I&N Dec. 512 (BIA 1999);
Matter of Punu, 22 I&N Dec. 224 (BIA 1998). Before 1997, however, such
dispositions did not uniformly qualify as “convictions” for immigration law
purposes. See, e.g., Matter of Manrique, 21 I&N Dec. 58 (BIA 1995);
Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). Under the DHS’s proposed
interpretation, lawful permanent residents who received certain pre-IIRIRA
diversionary dispositions apparently would be ineligible for section 212(c)
relief because they would not have been deportable at the time of their
convictions. Further, when such lawful permanent residents are placed
in removal proceedings on the basis of their pre-IIRIRA convictions,
Immigration Judges seeking to evaluate their eligibility for section 212(c)
relief would presumably need to determine not only when the relevant
judgment was entered but also whether the judgment had rehabilitative
features that might have excluded it from treatment as a “conviction” under
the understanding of Ozkok then prevailing in the relevant jurisdiction.16
Even if we assume that sufficiently detailed records of such long-past
judgments would be available, it is evident that determinations of this kind
could rarely be made without protracted litigation.
The foregoing considerations lead us to conclude that the AEDPA and
IIRIRA amendments to section 212(c) of the Act do not apply to an
otherwise eligible lawful permanent resident who is presently deportable or
removable by virtue of a plea or conviction that occurred before April 24,
1996. An otherwise eligible lawful permanent resident who is presently
deportable or removable by virtue of a plea or conviction entered between
16
An additional layer of complexity would potentially be introduced if the offense of
conviction is “divisible” with respect to the current or former grounds of removal. In
such cases, the Immigration Judge would arguably be required to determine not whether
the alien is removable under the current understanding of the “modified categorical
approach,” see Descamps v. United States, 133 S. Ct. 2276 (2013), but rather whether he
would have been deportable and excludable pursuant to the then-current understanding of
that approach.
271
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
April 24, 1996, and April 1, 1997, is subject to the version of section 212(c)
that resulted from section 440(d) of the AEDPA (unless his proceedings
commenced before AEDPA’s enactment, see supra note 11) but is not
subject to the repeal of section 212(c), which became effective on April 1,
1997. The DHS’s narrower proposed rule would run too high a risk of
excluding qualified applicants and would consume administrative resources
that would be better spent simply adjudicating the substantive merits of the
waiver application. Section 212(c) relief remains discretionary, and the
Immigration Judge may still deny such relief if the applicant’s equities are
found to be outweighed by negative factors. See Moncrieffe v. Holder, 133
S. Ct. 1678, 1692 (2013).
C. Result
Having thoroughly considered the arguments of the parties and the
Supreme Court’s decisions in St. Cyr, Judulang, and Vartelas, as well as
the numerous decisions of the courts of appeals, it is our judgment that a
lawful permanent resident who has accrued 7 consecutive years of lawful
unrelinquished domicile in the United States and who is removable or
deportable by virtue of a plea or conviction entered before April 24, 1996,
is eligible to apply for section 212(c) relief in removal or deportation
proceedings unless:
(1) The applicant is subject to the grounds of inadmissibility under sections
212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or
(2) The applicant has served an aggregate term of imprisonment of at least
5 years as a result of one or more aggravated felony convictions entered between
November 29, 1990, and April 24, 1996.
If an otherwise qualifying lawful permanent resident is removable or
deportable by virtue of a plea or conviction entered between April 24, 1996,
and April 1, 1997, he or she is eligible to apply for section 212(c) relief in
removal or deportation proceedings unless:
(1) The applicant’s proceedings commenced on or after April 24, 1996, and the
conviction renders the applicant deportable under one or more of the
deportability grounds enumerated in section 440(d) of the AEDPA; or
(2) The applicant is subject to the grounds of inadmissibility under sections
212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or
(3) The applicant has served an aggregate term of imprisonment of at least
5 years as a result of one or more aggravated felony convictions entered between
November 29, 1990, and April 24, 1996.
272
Cite as 26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
The respondent is a lawful permanent resident with more than 7 years
of lawful unrelinquished domicile in the United States. Further, he is
removable on the basis of an aggravated felony conviction that was entered
before April 24, 1996. That conviction neither renders him inadmissible
under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act nor
resulted in the imposition of a 5-year term of imprisonment. Accordingly,
the respondent is eligible to apply for section 212(c) relief.
IV. CONCLUSION
In conclusion, Immigration Judges should now adjudicate the merits of
any application for section 212(c) relief filed by a lawful permanent
resident who satisfies the foregoing eligibility criteria. The respondent
qualifies for section 212(c) relief under those criteria. His appeal will
therefore be sustained, and the record will be remanded for further
proceedings to address whether he merits such relief in the exercise of
discretion. See, e.g., Matter of Marin, 16 I&N Dec. 581 (BIA 1978).
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
273
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.