BIA: Leveling the playing field for § 212(c) relief
By Tamikka Pate
After much belaboring over who is entitled to relief from removal under long-repealed Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), the BIA adopted an approach that places inadmissible and deportable LPRs on a truly level playing field, while disregarding mechanical distinctions that arise from statutory structure and bear no relation to the overall purpose of the immigration laws. Id. at 265. According to the BIA, the new approach 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. Id.
The respondent, Ezzat Abdelghany, is a native and citizen of Egypt who was admitted to the U.S. as a nonimmigrant in 1986 and became an LPR in 1987. Id. at 256. In 1995, Abdelghany entered a guilty plea and was convicted of conspiracy to commit arson. Id. Subsequently, Abdelghany was sentenced to a 24-month term of imprisonment, which was later reduced to a term of six months pursuant to Rule 35 of the Federal Rules of Criminal Procedure. Id. In 2010, DHS initiated removal proceedings alleging that the 1995 conviction rendered Abdelghany removable as an alien convicted of an “aggravated felony,” as defined by sections 101(a)(43)(E)(i) (relating to explosive materials) and (U) (relating to conspiracy offenses) of the Act. Id. The IJ sustained the aggravated felony charge, which was not disputed, and denied Abdelghany’s request for a section 212(c) waiver – the only form of relief requested. Id. According to the IJ, Abdelghany was ineligible for such relief based solely on the interpretation of the “statutory counterpart” rule in BIA precedents. Id. Abdelghnay appealed, arguing that the statutory counterpart rule was misapplied in his case. Id.
To understand Abdelghany’s argument, an abridged legal background of § 212(c) is necessary. First, between 1952 and 1990, § 212(c) provided in relevant part, “[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].” Id. at 256. Though the statute referenced admission only, federal courts and the BIA expanded it to apply to noncitizens facing deportation to avoid potential Equal Protection Clause problems. See Francis v. INS, 532 F.2d 268 (2nd Cir. 1976); Matter of Silva, 16 I&N Dec. 26 (BIA 1976).
Not surprisingly, the expansion of § 212(c) “presented difficult line-drawing problems.” Matter of Abdelghany, 26 I&N Dec. at 258. In the wake of those problems, the Attorney General declared that § 212(c) relief was unavailable to any LPR who was deportable or removable “on a ground which does not have a statutory counterpart in § 212 of the Act.” 8 C.F.R. § 1212.3(f)(5).
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.” Id. at 257. For example, the first limitation made § 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. Id. A few years later, in 1996, that prohibition was expanded to cover all LPRs who were “deportable” based on convictions for a broad set of offenses, including aggravated felonies. Id.; see AEDPA). And finally, less than a year after AEDPA went into effect, Congress repealed § 212(c) in its entirety. See IIRIRA). Despite repeal, § 212(c) continues to be available to some individuals who were convicted before September 30, 1996. See INS v. St. Cyr, 533 U.S. 289 (2001).
The statute’s history was again thrown into disarray in 2011, this time due to litigation about the means of applying the statutory counterpart requirement. Rather than clarify that question, however, in Judulang v. Holder, 132 S. Ct. 476, 490 (2011), the Court invalidated as “arbitrary and capricious” the statutory counterpart rule. It did not, however, preclude the BIA from creating an alternative rule that “comports with everything held in both this decision [Judulang] and the earlier INS v. St. Cyr, 533 U.S. 289 (2001) decision.” Judulang, 132 S. Ct. at 490.
After Judulang the question to be answered is which deportable LPR may apply for § 212(c) relief? Matter of Abdelghany, 26 I&N Dec. at 259. To answer that question in Abdelghany the BIA relied on the lessons learned from St. Cyr and Judulang. Id. From St. Cyr, the BIA concluded, “denying § 212(c) relief to an LPR on the basis of the [AEDPA and IIRIRA] amendments is impermissible if such denial attaches a new disability, in respect to transactions or considerations already past.” Id. (citing INS v. St. Cyr., 533 U.S. at 321.)
And from Judulang, it concluded, “a deportable LPR cannot be declared ineligible for § 212(c) relief on the basis of mechanical distinctions arising from the structure of the immigration statute. Id. (citing Judulang, 132 S. Ct. at 485). Instead, any distinction drawn between two different classes of removable LPRs must be tied – even loosely – to the purposes of the immigration laws or the appropriate operation of the immigration system.” Id.
The objective is to “avoid standards that arbitrarily exclude people from eligibility for relief without regard to their relative fitness to remain in the U.S., while also taking care to avoid applying the AEDPA or IIRIRA amendments in a manner that would have an impermissible retroactive effect.” Id. at 261. Thus, two issues must first be addressed: (1) whom should be deemed fit to remain in the U.S., and (2) whether that criteria will be applied retroactively to both LPRs convicted at trial and by entering a guilty plea. Id.
As to the first issue, to eliminate most arbitrary and capricious distinctions, the BIA held that an LPR who has accrued 7 consecutive years of lawful unrelinquished domicile in the U.S. may apply for § 212(c) relief in removal proceedings to waive any ground of deportability or removability, unless the applicant is subject to the grounds of inadmissibility under INA §§ 212(a)(3)(A), (B), (C), or (E) or 10(C), or 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. Id. at 272. This is consistent with the earlier text of § 212(c) which provided aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily 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 excludability. Id. at 256.
As to the second issue, the BIA drew no distinction, for the purpose of retroactivity, between convictions at trial or guilty pleas, and found unpersuasive precedential decisions demanding a showing of detrimental reliance on the availability of relief. Holding, “a lawful permanent resident convicted after trial need not demonstrate that he acted or could have acted in reliance on the availability of § 212(c) relief when structuring his conduct.” Id. at 269. Instead, all that is required is a showing “that the AEDPA or IIRIRA amendments attached a ‘new disability’ to pleas or convictions occurring before their effective dates.” Id.
If an otherwise qualifying LPR is removable or deportable by virtue of a plea or conviction between April 24, 1996 and April 1, 1997, § 212(c) relief is available unless: (1) proceedings were commenced on or after April 24, 1996, and the conviction renders the applicant deportable under one or more of the deportability grounds enumerated in § 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. Id. at 272. Section 440(d) of AEDPA made the following classes of aliens ineligible for § 212(c) relief: (1) aggravated felons; (2) those convicted of controlled substance offense; (3) those convicted of firearm offenses; (4) those convicted of specific miscellaneous crimes, such as espionage; and (5) those convicted of multiple CIMTs. AEDPA § 440(d); see INA § 212(c) (2005). An LPR who meets the 7 year domicile requirement and 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), however, the same grounds of inadmissibility apply. Matter of Abdelghany, 26 I&N Dec. 254.
As applied, Respondent Abdelghany is an LPR with more than 7 years of lawful unrelinquished domicile in the U.S. Abdelghany is removable on the basis of an aggravated felony conviction entered before April 24, 1996. Id. at 273. Fortunately, that conviction does not render Abdelghany inadmissible under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act, nor did it result in the imposition of a 5-year term of imprisonment. Id. Accordingly, the Board found that Abdelghany is eligible to apply for § 212(c) relief. Id. at 255.
Tamikka Pate is a recent graduate of Capital University Law School who is currently awaiting admission to the New York State Bar. Tamikka’s areas of interests are alternatives to incarceration, holistic defense, and juvenile justice.
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