In re Abdelghany
| Decision Date | 28 February 2014 |
| Docket Number | Interim Decision #3796 |
| Citation | 26 I&N Dec. 254 |
| Parties | Matter of Ezzat H. ABDELGHANY, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who 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) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), unless: (1) 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, 8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or (2) 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.
(2) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under former section 212(c) of the Act unless: (1) the applicant's removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); 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.
(3) A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.
FOR RESPONDENT: Mumtaz A. Wani, Esquire, Falls Church, Virginia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Justin M. Leone, Assistant Chief Counsel
AMICI CURIAE: American Immigration Lawyers Association;1 Federation for American Immigration Reform2BEFORE: Board Panel: HOLMES, GUENDELSBERGER, and WENDTLAND, Board Members.
WENDTLAND, Board Member:
In a decision dated June 23, 2011, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien convicted of an aggravated felony under sections 101(a)(43)(E)(i) and (U) of the Act, 8 U.S.C. §§ 1101(a)(43)(E)(i) and (U) (2006), based on his 1995 Federal conviction for conspiracy to commit arson in violation of 18 U.S.C. §§ 371 and 844(i) (1994). The respondent requested relief from removal under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), but the Immigration Judge concluded that he was ineligible for a waiver because the aggravated felony category under which he was charged did not have a "statutory counterpart" in the grounds of inadmissibility, as required by 8 C.F.R. § 1212.3(f)(5) (2011) and our precedent decisions. The respondent has appealed, arguing that the statutory counterpart rule was misapplied in his case.
During the pendency of the appeal, the Supreme Court decided Judulang v. Holder, 132 S. Ct. 476 (2011). That decision invalidated our precedents applying the statutory counterpart rule as "arbitrary and capricious," leaving it to us to "devise another, equally economical policy respecting eligibility for § 212(c) relief." Id. at 490. In light of Judulang, we solicited supplemental briefs in which we asked the parties and amici curiae to provide us with their views as to what test we should adopt for evaluating the respondent's eligibility for section 212(c) relief.3
We now conclude that, with a few significant exceptions, a lawful permanent resident of the United States who has accrued 7 consecutive years of lawful unrelinquished domicile in this country is eligible to apply for section 212(c) relief in removal proceedings if he or she is removable by virtue of a plea or conviction entered before April 1, 1997. Applying this test, we conclude that the respondent is eligible to apply for a section 212(c) waiver. Accordingly, the respondent's appeal will be sustained and the record will be remanded for further proceedings.
The relevant facts are undisputed. The respondent is a native and citizen of Egypt who was admitted to the United States as a nonimmigrant in 1986 and became a lawful permanent resident in 1987. In 1995, pursuant to a guilty plea, the respondent was convicted of conspiracy to commit arson in violation of 18 U.S.C. §§ 371 and 844(i), for which he was sentenced to a 24-month term of imprisonment.4
In July 2010 the Department of Homeland Security ("DHS") initiated these removal proceedings, alleging that the respondent's 1995 conviction renders him removable from the United States as an alien convicted of an "aggravated felony," as that term is defined by sections 101(a)(43)(E)(i) and (U) of the Act.5 The Immigration Judge sustained that charge, which is not disputed, and denied the respondent's request for a section 212(c) waiver, the only form of relief for which he applied. As noted previously, the Immigration Judge found the respondent ineligible for such relief based solely on the interpretation in Board precedents of the "statutory counterpart" rule, which was later invalidated by the Judulang Court.
Since the evolution of section 212(c) relief has been described elsewhere, most notably in the Supreme Court's decision in Judulang, we need not repeat its full history here. Instead, we provide the following abridged account.
Beginning in 1990, Congress placed a series of increasingly strict limits on the availability of section 212(c) relief for lawful permanent residents with criminal convictions. The first such limitation made section 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. See Immigration Act of 1990, Pub. L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (effective Nov. 29, 1990) ("IMMACT 90"), Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, § 306(a)(10), 105 Stat. 1733, 1751 ().
In 1996, that prohibition was expanded to cover all lawful permanent residents who were "deportable" based on convictions for a broad set of offenses, including aggravated felonies, drug convictions, firearm offenses, and certain convictions for crimes involving moral turpitude. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (effective Apr. 24, 1996) ("AEDPA"). Finally, less than 1 year after AEDPA went into effect, Congress repealed section 212(c) in its entirety. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-546, 3009-597 (effective Apr. 1, 1997) ("IIRIRA").6
The foregoing amendments—which first limited and then repealed section 212(c)—prompted a great deal of administrative litigation, primarily concerned with defining the amendments' proper temporal scope. That litigation culminated in Matter of Soriano, 21 I&N Dec. 516, 533-40 (BIA 1996; A.G. 1997), in which the Attorney General determined that applying section 440(d) of the AEDPA to foreclose applications for section 212(c) relief that were pending on AEDPA's effective date had no impermissible retroactive effect. In 2001, however, the Supreme Court held that in view of the presumption against statutory retroactivity, "§ 212(c) relief remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." INS v. St. Cyr, 533 U.S. 289, 326 (2001).
Various issues relating to the availability of section 212(c) relief nevertheless remained. The text of section 212(c) has always been framed in terms of the "admission" of lawful permanent residents who are returning to the United States after traveling abroad. In the 1970s, however, judicial and administrative determinations relying on constitutional considerations resulted in the extension of section 212(c) relief to many lawful permanent residents who had never left the United States—and thus were not seeking "admission," either currently or nunc pro tunc—and who were "deportable" based on conduct similar to that described in the grounds of exclusion at section 212(a) of the Act. See, e.g., Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I&N Dec. 26 (BIA 1976).7
The expansion of section 212(c) beyond its text has presented difficult line-drawing problems for...
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...other things, his aggravated felony conviction had occurred in 1986 and was not subject to the aggravated felony bar); Matter of Abdelghany, 26 I. & N. Dec. 254 (BIA 2014) (discussing who may receive a Section 212(c) wavier of ineligibility); In re Crammond, 23 I. & N. Dec. 9 (BIA 2001) (en......