Sunday, April 24, 2005

212(c) Relief is Very complicated

The BIA's decision on April 6, 2005 in In re Blake, 23 I&N Dec. 722 (BIA 2005) indicates that the BIA's position is that 212(c) relief is only available to avoid deportation if there is a corresponding ground of inadmissibility. In theory, if the BIA takes a position, that is not the end of the matter -- the BIA's position can be challenged in the federal courts as unconstitutional (and challenges to other BIA positions have been successful in the past).

Section 212(c) relief began as a way for immigrants who were lawfully admitted as permanent residents to be admitted back into the U.S. if they could show, among other things, that they had been living for seven consecutive years as a green card holder before they left the U.S.

In 1976, the federal courts ruled that people facing deportation should also have a chance to seek section 212(c) relief, just like people who are trying to return to the U.S. The BIA and DHS have frequently argued that 212(c) relief is only available if the conviction the immigrant is trying to waive is also a ground of inadmissibility.

The BIA's position on what convictions also serve as a ground of inadmissibility upon initial glance seems to be as follows. Note, this is a very complicated area where lawyers who are given enough time can study nuances and other court rulings to anticipate additional arguments and theories. It is very complex and the BIA's comments should not be taken as the final word. In fact, the concurring opinion in Matter of Meza, 20 I&N Dec. 257, 260-61 (BIA 1991) suggests a different view:

Drug-related aggravated felony? Yes, there is a comparable ground so section 212(c) relief seems like a possibility. Matter of Meza, 20 I&N Dec. 257 (BIA 1991). Also, Drax v. Reno, 338 F.3d 98 (2d Cir. 2003) .

Firearms violation? No. Matter of Esposito, 21 I&N Dec. 1 (BIA 1995); Matter of Montenegro, 20 I&N Dec. 603 (BIA 1992). Also, Cato v. INS, 84 F.3d 597, 600 (2d Cir. 1996).

Fraud and misuse of visas, permits or other entry documents? No. Matter of Jimenez, 21 I&N Dec. 567 (BIA 1996).

Murder, rape aggravated felonies? Perhaps no, as generally described in the Supplemental Information to the new regulations on 212(c) relief.

Crime of violence aggravated felonies? Perhaps no, as generally described in the Supplemental Information to the new regulations on 212(c) relief.

Sexual abuse of a minor? No. Matter of Blake, 23 I&N Dec. 722 (BIA 2005).

I need to check my notes, but I think under Drax v. Reno, 338 F.3d 98 (2d Cir. 2003), the crime of entering the U.S. without inspection would be ok for 212(c) relief.

If you have a particular problem, you should consult an immigration attorney because this area of the law is very complicated and requires researching many complicated court rulings. For example, this has dealt so far with only the requirement that there must be a corresponding ground of inadmissibility. I did not even touch on the length of time with permanent residence status needed, that the conviction had to take place before April 24, 1996 (or under different rules if after then but before April 1, 1997), or whether the conviction must have been reached through a plea agreement as opposed to a trial. The Third Circuit decision in Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004) allowed an immigrant who went to trial before April 1997 to seek 212(c) relief when he rejected a plea agreement by relying on his expectation that he would be able to ask for 212(c) relief later. Potentially helpful cases in other circuits include Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004) and Thaqi v. Jenifer, 377 F.3d 500 (6th Cir. 2004) (two crimes of moral turpitude, one by trial and one by plea).

Another useful case is Gonzales-Garcia v. Gonzales, No. 04-60385 (5th Cir. Nov. 15, 2005): the 212(c) requirement of continuous physical presence cannot be stopped under the stop-time rule by the mere commission of a crime of moral turpitude before 1997. It can stop with the issuance of an NTA, but not a mere criminal act pre-IIRIRA (pre-1997) that the person pled guilty to, because that would be improperly retroactive.


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