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Interim Decision #3660

Matter of Alejandro MORENO-ESCOBOSA, Respondent

File A026 306 037 - Florence, Arizona

Decided October 30, 2009

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The date of an alien’s plea agreement, rather than the date of sentencing, is controlling

in determining whether the alien is eligible for a waiver under former section 212(c)

of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994).

(2) The decision of the United States Court of Appeals for the Ninth Circuit in Abebe

v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. § 1212.3 (2009),

so as to preclude an alien who seeks to waive a deportation ground from establishing

eligibility for section 212(c) relief.

FOR RESPONDENT: Candida S. Quinn, Esquire, Helena, Montana

FOR THE DEPARTMENT OF HOMELAND SECURITY: Robert C. Bartlemay, Sr.,

Assistant Chief Counsel

BEFORE: Board Panel: GRANT, MILLER, and MULLANE, Board Members.

MULLANE, Board Member:

In a decision dated November 21, 2008, an Immigration Judge found

the respondent removable under section 237(a)(2)(B)(i) of the Immigration

and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), as an alien convicted

of a controlled substance violation. The Immigration Judge also pretermitted

the respondent’s application for a waiver of inadmissibility under former

section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), and denied his

application for cancellation of removal under section 240A(a) of the Act,

8 U.S.C. § 1229b(a) (2006). The respondent has appealed from that decision.

The respondent’s request for a waiver of the filing fee for the appeal is granted

pursuant to 8 C.F.R. § 1003.8(a)(3) (2009). The appeal will be sustained and

the record will be remanded to the Immigration Judge for further proceedings.

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Interim Decision #3660

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who was admitted to the

United States as a lawful permanent resident on October 23, 1985. He is the

father of four United States citizen children. The record reflects that he was

convicted in Arizona of unlawful possession of more than 8 pounds

of marijuana on the basis of a guilty plea entered on July 21, 1991. The

respondent failed to appear for sentencing, was later apprehended, and

on October 26, 2005, was sentenced to more than 4 years of imprisonment.

The Immigration Judge concluded that the respondent’s conviction

rendered him removable and statutorily ineligible for a waiver under section

212(c) of the Act. According to the Immigration Judge, the respondent was

ineligible because although he pled guilty to his offense in 1991, the

conviction did not become final until he was sentenced in 2005, after the

repeal of section 212(c). The Immigration Judge also denied the respondent’s

application for cancellation of removal in the exercise of discretion.

II. ANALYSIS

We review the findings of fact made by the Immigration Judge

to determine whether they are “clearly erroneous.” See Matter of S-H-,

23 I&N Dec. 462 (BIA 2002); 8 C.F.R. § 1003.1(d)(3)(i) (2009). There

is clear error in a factual finding when the reviewing body is “‘left with the

definite and firm conviction that a mistake has been committed.’” Matter

of R-S-H-, 23 I&N Dec. 629, 637 (BIA 2003) (quoting United States v. United

States Gypsum Co., 333 U.S. 364, 395 (1948)). We review de novo all other

questions of law, discretion, and judgment, including the question whether the

parties have met the relevant burden of proof. See Matter of A-S-B-, 24 I&N

Dec. 493 (BIA 2008); 8 C.F.R. § 1003.1(d)(3)(ii). Since the respondent’s

request for relief was filed after May 11, 2005, these proceedings

are governed by the provisions of the REAL ID Act of 2005, Division

B of Pub. L. No. 109-13, 119 Stat. 302. See Matter of S-B-, 24 I&N Dec.

42 (BIA 2006).

The respondent argues on appeal that the Immigration Judge erred

in finding him ineligible for a waiver of inadmissibility under former section

212(c) of the Act. He asserts that his case is covered by INS v. St. Cyr, 533

U.S. 289 (2001), in which the United States Supreme Court determined that

although section 212(c) was repealed in 1996, the waiver remains available

to aliens whose convictions were obtained through plea agreements and who

would have been eligible for relief at the time of their plea. Thus he contends

that he is eligible for a waiver because he entered a guilty plea on July 21,

1991, even though he was not sentenced until October 26, 2005.

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Interim Decision #3660

We agree with the respondent’s contentions. It is the date of an alien’s

plea agreement, rather than the date of sentencing, that controls in determining

whether the alien is eligible for a section 212(c) waiver. This is so because the

Supreme Court was concerned with an alien’s reliance on the availability

of section 212(c) relief when he agreed to plead guilty. INS v. St. Cyr, 533

U.S. at 321-25. Therefore, because the respondent entered a guilty plea

in 1991, we conclude that he is not precluded from establishing eligibility for

a waiver on the basis of his 2005 sentencing date.

Whether the respondent is eligible for a section 212(c) waiver also turns

on the recent decision of the United States Court of Appeals for the Ninth

Circuit in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc). In that

case the Court overruled its holding in Tapia-Acuna v. INS, 640 F.2d 223

(9th Cir. 1981), that “there’s no rational basis for providing section 212(c)

relief from inadmissibility, but not deportation.” Abebe v. Mukasey, 554 F.3d

at 1207. The court then rejected the petitioner’s equal protection claim, stating

that because he “was not eligible for section 212(c) relief in the first place, the

BIA could not have committed an equal protection violation by denying him

such relief.” Id. Nevertheless, the court noted the existence of a regulation

that provided that aliens charged with grounds of deportability were eligible

for section 212(c) relief. While the court seemed to invite reconsideration and

“eventually repeal” of that regulation, it pointed out that “nothing we say today

casts any doubt on the regulation.” Id.

We requested that the parties submit briefs on the question whether the

respondent remains eligible for a section 212(c) waiver in light of Abebe

v. Mukasey. Both the respondent and the Department of Homeland Security

agree that Abebe does not foreclose a section 212(c) waiver simply because

an alien is charged with a ground of deportability rather than a ground

of inadmissibility. We agree.

The regulations at 8 C.F.R. § 1212.3 (2009) authorize an alien in removal

proceedings or in former exclusion or deportation proceedings (i.e., either

an alien who is seeking admission at the border or one who is inside the

United States) to apply for section 212(c) relief before an Immigration Judge.

Ordinarily, we are bound to apply the regulations. See, e.g., Matter of Ponce

De Leon, 21 I&N Dec. 154, 158 (BIA 1996). An exception to this rule may

be made when a regulation is contrary to circuit court precedent. See id.

at 159. In this case, we are not presented with the issue of having to choose

between the regulation and court precedent, as the Ninth Circuit expressly

stated that its conclusion does not “cast[] any doubt on the regulation.” Abebe

v. Mukasey, 554 F.3d at 1207. Because the regulation is not limited to aliens

who are at the border seeking to waive a ground of inadmissibility,

we conclude that the respondent is eligible to apply for a section 212(c)

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Interim Decision #3660

waiver. Accordingly, we will sustain his appeal from the Immigration Judge’s

decision to pretermit his application for section 212(c) relief.

It is important to note that nothing in this decision is intended to cast doubt

on our prior holdings where we articulated the “statutory counterpart” rule

that an alien seeking to waive a deportation ground must establish that there

is a comparable ground of inadmissibility in section 212(a) of the Act. See,

e.g., Matter of Brieva, 23 I&N Dec. 766 (BIA 2005), aff’d sub nom.

Brieva-Perez v. Gonzales, 482 F.3d 365 (5th Cir. 2007). Indeed, the Ninth

Circuit’s decision in Abebe v. Mukasey can be fairly read as rejecting the equal

protection challenge to the application of the statutory counterpart rule.

Ordinarily, when an Immigration Judge erroneously pretermits

an application for relief, the remedy is to remand the case for full consideration

of the application. This case is unusual in that the factors considered

in an application for section 212(c) relief are essentially the same as those

considered in adjudicating an application for cancellation of removal under

section 240A(a) of the Act. See Matter of C-V-T-, 22 I&N Dec. 7, 11 (BIA

1998). Indeed, in cases where an alien is eligible for both forms of relief

we would not expect an Immigration Judge to hold separate or bifurcated

evidentiary hearings on the section 212(c) application and the cancellation

of removal application. We could therefore rely on the Immigration Judge’s

discretionary decision on the respondent’s cancellation of removal application

to decide whether to grant his section 212(c) waiver. However, given the

confusion associated with the availability of section 212(c) relief and the

respondent’s separate claim that the Immigration Judge did not give adequate

consideration to all of his equities, including his significant employment

history and his volunteer and civic activities, the better course is to remand for

a full and complete decision on both the section 212(c) application and the

application for cancellation of removal. On remand, the Immigration Judge

should weigh all of the positive and negative factors presented.

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.

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