As applied, two precedents emerged from this convoluted history: (1) LPRs who were deportable under the “sexual abuse of a minor” or (2) “crime of violence” aggravated felony categories were ineligible for section 212(c) relief because those categories lacked substantially equivalent statutory counterparts in the inadmissibility grounds. Id. (citing 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)). Then, “[b]eginning in 1990, Congress placed a series of increasingly strict limits on the availability of § 212(c) relief for LPRs with criminal convictions.”

This post should serve to dispel such a notion by describing (1) two recent Supreme Court cases addressing § 212(c) and retroactivity and (2) procedural developments at the BIA level on how the agency views § 212(c) relief today. (1) Judulang v. Holder, 132 S.Ct. 476 (2011), was a direct challenge to the statutory counterpart rule adopted by the Board of Immigration Appeals in Matter of Blake, 23 I&N Dec. 722 (BIA 2005). In Judulang, the Supreme Court characterized the Attorney General’s and Board of Immigration Appeals’ decision-making respecting § 212(c) eligibility as arbitrary and capricious.

he United States) while denying others who were similarly situated but for one factor (they had not left the country) this benefit.Soon the BIA adopted this approach too. Fawk, 32 Western New England L. Rev. at 429 (citing Matter of Silva, 16 I&N Dec. 26, 30 (BIA 1976)). To determine whether a person in deportation proceedings was similarly situated to one in exclusion proceedings, “[t]he BIA settled on the comparable-grounds approach to guide immigration judges in their equal protection determination.” Fawk, 32 Western New England L. Rev. at 430. Eventually DHS codified the comparable grounds approach using a “statutory counterpart” requirement in which the proper focus is the ground of removal not the underlying offense. Fawk, 32 Western New England L. Rev. at 439 (discussing 8 C.F.R. § 1212.3(f)).According to Fawk, “In 2005, the BIA for the first time applied the new statutory-counterpart test in In re Blake.” Fawk, 32 Western New England L. Rev. at 440 (discussing Matter of Blake, 23 I&N Dec. 722 (BIA 2005)). In that case, “the BIA stressed, ‘Congress [must have] employed similar language to describe substantially equivalent categories of offenses.’” Fawk, 32 Western New England L. Rev. at 440.Eight courts of appeals have followed the BIA’s Matter of Blake approach, Fawk writes: the First, Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh. Fawk, 32 Western New England L. Rev. at 441. These circuits determine whether a comparable ground of exclusion exists by looking only at the statutory language of the charged ground of deportation and the language of the ground of exclusion that the respondent claims is comparable. Fawk, 32 Western New England L. Rev. at 442.In contrast, the Second Circuit adopted an “offense-specific” approach in Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007). Following that approach, the comparable grounds determination turns “not on the language of the grounds but instead on the offense committed by the petitioner.” Fawk, 32 Western New England L. Rev. at 442.

According to the cert petition, in 2005 “the BIA ruled that deportable lawful permanent residents(LPRs) who had not traveled abroad after their convictions could only seek discretionary relief if the government charged them under a deportation provision inthe INA that used similar language to an exclusion provision. Matter of Blake, 23 I&N Dec. 722 (BIA 2005). … The circuits are split three ways as to the lawfulness of the BIA’s new approach.