On February 28, 2014, the Board of Immigration Appeals (BIA) issued its decision in Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), which clarifies the scope of INA 212(c). This is the most recent decision in a long line of cases that has tried to define, limit or extend this relief. What’s interesting is that INA 212(c) was repealed on April 1, 1997 and yet it has produced a rich body of cases that has extended the availability of this relief beyond its time.
It might be difficult to imagine how a long repealed law could save you from removal but it can. For example, X obtained his lawful permanent resident (LPR) status in 1985. In 1990, he was convicted of drug trafficking, which is an aggravated felony. Since then, he has traveled abroad and renewed his green card without incident until in 2005 he was stopped at the airport after returning from a trip because immigration authorities discovered his conviction through an improved database. X was placed in removal proceedings. There’s almost no relief for aggravated felons like X but he can apply under INA 212(c) to waive his ground for removal.
As originally enacted in 1952, INA 212(c) provides that “aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of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”. INA 212(c) also covers LPRs who did not proceed abroad but who risked losing their LPR status due to charges of deportability.
Over the years, Congress has imposed restrictions on INA 212(c). Since November 29, 1990, LPRs who had served an aggregate term of imprisonment of at least 5 years for an aggravated felony conviction could no longer apply under INA 212(c). Starting on April 24, 1996, INA 212(c) barred relief to LPRs convicted of aggravated felonies, drug convictions, firearm offenses, espionage, and multiple convictions for crimes involving moral turpitude (CIMT). Finally, on April 1, 1997, Congress repealed INA 212(c).
The repeal of a law usually means that it could no longer be invoked to assert rights or apply for relief. However, that’s not the case with INA 212(c). In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held that INA 212(c) remains available to LPRs whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for INA 212(c) relief at the time their pleas were made under the version of INA 212(c) which was then in effect.
Let’s examine the facts in INS v. St. Cyr to understand its ruling. On March 8, 1996, St. Cyr entered a guilty plea to a charge of selling a controlled substance. This resulting conviction made him deportable. However, he was not placed in removal proceedings until April 10, 1997. Although INA 212(c) was repealed on April 1, 1997, the Supreme Court ruled that St. Cyr could still seek INA 212(c) relief because when he entered his guilty plea he relied on the availability of INA 212(c) to protect him from removal in the event he is placed in proceedings. St. Cyr qualified under the version of INA 212(c) which was in effect on March 8, 1996. This version allowed aggravated felons with sentences of less than 5 years or controlled substance convicts to apply for relief.
INS v. St. Cyr provided relief to countless LPRs who have been deprived of the opportunity to apply under INA 212(c) since April 1, 1997. However, despite the continuing availability of INA 212(c), there were persistent problems. The first problem was whether LPRs who were convicted after trial and not through plea bargains may apply for relief. INS v. St. Cyr did not deal with this issue. So its silence on this matter led to regulations that denied LPRs convicted after trial from applying under INA 212(c). The second problem is much older. Under the BIA’s statutory counterpart rule, INA 212(c) is available only if the deportation ground he is charged with is substantially equivalent to an inadmissibility ground. The reason is because INA 212(c) originally applied to those seeking admission and who were charged with inadmissibility. It was later extended to those who have never left and who were charged as being deportable. Hence, it was assumed that it was proper to extend INA 212(c) only if the deportability charge was similar to an inadmissibility ground, which was not always the case.
Solutions soon began to emerge. Several circuit courts of appeals have recognized the availability of relief to LPRs convicted after trial. The Supreme Court, in Judulang v. Holder, 132 S.Ct. 476 (2011), invalidated the statutory counterpart rule. Thus, in Abdelghany, the BIA revised its rules and aligned them with these developments. Abdelghany is significant because it provides uniform guidance for Immigration Judges that reflects the consensus of all higher courts on how to apply INA 212(c).
