REVERSING what has been over 5 years of illogical jurisprudence Immigration Judges (“IJs”) and the Board of Immigration Appeals (“BIA”), the US Supreme Court recently rejected the BIA’s decisions in Matter of Blake, 23 I&N Dec. 722 (BIA 2005), and Matter of Brieva, 23 I&N Dec. 766 (BIA 2005) which had held that §212(c) relief from deportation was only available to an individual if the US Department of Homeland Security (“DHS”) had charged them with a ground of deportability that had a “comparable ground” of inadmissibility. The so-called “comparable grounds” test disallowed relief to people would have been inadmissible to the US if apprehended while seeking admission at a point of entry from outside the US and therefore eligible for a §212(c) “waiver of inadmissibility,” based on the irrelevant distinction that the DHS had apprehended them within the US and charged them with a ground of deportation. The high Court’s opinion,
Judulang v. Holder, No. 10-694, 565 U.S. ___, 2011 U.S. LEXIS 9018 (Dec. 12, 2011) restores common sense and fairness to the immigration law, which prior to Blake had followed a long line of cases holding that “equal protection” required that Section 212(c), albeit a “waiver of exclusion or inadmissibility,” be available to individuals charged with deportation 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Section 212(c) was repealed in 1996, but the US Supreme Court in INS v. St. Cyr, decided June 25, 2001 that §212(c) relief remained available to aliens who pleaded guilty to crimes at a time when 212(c) relief would have been available to them. The 212(c) waiver allows lawful permanent residents (“LPRs”) who are deportable on the basis of criminal convictions to retain their status, if they could establish that they had been continuously resident for at least 7 years since their admission as permanent residents and deserved a favorable exercise of an IJ’s discretion, among other factors.
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 Court remanded the case to the Ninth Circuit Court of Appeals, which should in turn should lead to a reversal of the BIA’s decision in Judalang’s case and a remand to the BIA. Hopefully, this will cause the BIA to announce a new logical policy for determining when an LPR charged with deportability based on a pre-1996 conviction may apply for § 212(c) relief, perhaps the very approach proposed by Mr. Judulang in his briefing, which would allow any otherwise eligible LPR whose conviction also falls within a ground of inadmissibility, such as the most common “crime involving moral turpitude” inadmissibility ground, to seek § 212(c) relief.
In the wake of the Judilang decision, persons presently in removal proceedings should explore whether they may be eligible for Section 212(c) relief under the pre-Blake and Brieva standards, which should be restored. People 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. Individuals 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.
