IN accordance with the US Supreme Court’s 2011 decision in Judulang v. Holder, the BIA issued a decision on February 28, 2014 that makes Section 212(c) relief available to thousands or immigrants who were ordered deported or are presently deportable for criminal convictions. The decision, Matter of Abdelghany, abolishes the so-called “comparable grounds” rule that disallowed Section 212(c) relief from deportation to an individual if the US Department of Homeland Security (“DHS”) charged him with a ground of deportability that did not have a “comparable ground” of inadmissibility. Individuals affected by this ruling should seek legal advice in the filing of Motions to Reopen their cases to apply for Section 212(c) relief.
In Judulang, the Supreme Court held that the “comparable grounds” test irrationally disallowed relief to people would have been eligible for a §212(c) “waiver of inadmissibility” if apprehended while seeking admission at a point of entry from outside the US, but instead had been apprehended by the DHS within the US and charged with a ground of deportation. Abdelghany took the High Court’s reasoning and eliminated the distinction between charges of inadmissibility and deportability, making the 212(c) waiver available to immigrants who were convicted of crimes prior to law’s repeal in 1996 but charged with deportability for the same underlying criminal convictions.
Section 212(c) was repealed in 1996, but the US Supreme Court in INS v. St. Cyr, decided June 25, 2001 that §212(c) relief remained available to aliens who had pled guilty to crimes at a time when 212(c) relief would have been available to them. The 212(c) waiver makes lawful permanent residents (“LPRs”) who are deportable on the basis of criminal convictions eligible to retain their status, if they could establish that they have been continuously resident for at least 7 years since their admission and if convicted for an “aggravated felony,” did not actually serve 5 years in prison for such conviction.
Although all Federal Courts of Appeal and the BIA had followed the rule that §212(c) be applied to waive grounds of deportation, other than firearms offenses, for nearly 30 years, the BIA took an abrupt turn in Matter of Blake and Matter of Brieva, and held that LPRs charged with deportability do not have a right to seek relief from deportation under §212(c) unless the charged ground of deportation is “substantially equivalent” to a ground of inadmissibility. Furthering the axiom that “bad facts make bad law,” Blake involved the case of an LPR had been charged under the “sexual abuse of a minor” aggravated felony ground of removal and Brieva involved the “crime of violence” aggravated felony ground. The BIA held that neither of these aggravated felony deportation categories had a “comparable ground” of inadmissibility and denied § 212(c) relief to both individuals.
The Supreme Court in Judulang held that the BIA’s approach was “arbitrary and capricious” in violation of the Administrative Procedure Act (APA). The BIA in Abdelghany took the US Supreme Court’s mandate and announced very clear-cut rules to restore Section 212(c) relief for green card holders charged with deportability based on any convictions made when § 212(c) relief would have been available to them prior to the Immigration Law amendments of 1996, whether based on plea agreement or jury trial; and also eliminated the bar to §212(c) for those deemed ineligible solely because there was no ground of inadmissibility for “firearms offenses” in the Immigration & Nationality Act (INA).
Now, Section 212(c) should be available for immigrants with convictions prior to the changes in law for any crime that falls within the most common “crime involving moral turpitude” inadmissibility ground. The BIA’s decision only expressly excludes immigrants deemed inadmissible for “Security and related reasons,” such as terrorist activities, and those inadmissible for involvement in International Child abduction, as well as those who actually served 5 years in prison for their aggravated felony convictions.
Following Abdelghany, immigrants presently in removal proceedings for pre- April 24, 1996 convictions should explore whether they are eligible for Section 212(c) relief under the new rules. Immigrants with final orders of removal or pending appeals addressing a denial of Section 212(c) relief should prepare to file motions to reopen/reconsider or remand their cases to seek such relief. Immigrants in these circumstances would be well-advised to consult with an attorney specializing in Immigration & Nationality law to explore their options and determine what course of action is best suited to allow them to benefit from the case.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
