In re Blake
| Decision Date | 06 April 2005 |
| Docket Number | File A41 359 316.,Interim Decision Number 3509 |
| Citation | 23 I&N Dec. 722 |
| Parties | In re Leroy Nelson BLAKE, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated March 12, 2003, the Immigration Judge granted a waiver to the respondent under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994). The Department of Homeland Security ("DHS") has appealed, arguing that the respondent is ineligible for a waiver because the aggravated felony offense of sexual abuse of a minor that is the basis for his removal has no statutory counterpart in the grounds of inadmissibility in section 212(a) of the Act, 8 U.S.C. § 1182(a) (2000). As we find that the respondent is ineligible for a section 212(c) waiver, the appeal of the DHS will be sustained and the respondent will be ordered removed.
The respondent entered the United States on August 14, 1987, as a lawful permanent resident. On May 15, 1992, he pleaded guilty to sexual abuse in the first degree for in violation of section 130.65(3) of the New York State Penal Law. Based on this offense, the Immigration and Naturalization Service, now the DHS, issued a notice to appear on July 20, 1999, charging the respondent under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. V 1999), as an alien convicted of sexual abuse of a minor, which is an aggravated felony under section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999). In a decision dated January 26, 2000, the Immigration Judge found the respondent removable as charged and pretermitted his request for a section 212(c) waiver, finding that such a waiver was unavailable in removal proceedings. The respondent appealed the denial of his waiver request.
While the respondent's appeal was pending before us, the United States Supreme Court held that section 212(c) relief remained available in removal proceedings to otherwise eligible aliens who pleaded guilty to certain offenses prior to the 1996 repeal of section 212(c). INS v. St. Cyr, 533 U.S. 289 (2001). We therefore remanded this case to the Immigration Court to further consider the respondent's eligibility for a section 212(c) waiver.
On remand, the DHS raised the question whether the respondent's ground of removal had a comparable ground of inadmissibility. The Immigration Judge concluded that the categories of offenses described in section 101(a)(43)(A) of the Act had a comparable ground of inadmissibility in that nearly all such offenses "would necessarily involve moral turpitude." After examining the relevant equities and adverse factors, the Immigration Judge granted the respondent a section 212(c) waiver in the exercise of discretion and terminated proceedings.
On appeal, the DHS argues that there is no comparable ground of inadmissibility for the respondent's aggravated felony offense. The DHS also contends that the Immigration Judge erred in granting section 212(c) relief in the exercise of discretion. As discussed below, we find that the aggravated felony offense of sexual abuse of a minor has no statutory counterpart in the section 212(a) grounds of inadmissibility. As the respondent is therefore ineligible for a section 212(c) waiver, we do not reach the issue of the Immigration Judge's exercise of discretion.
We will first briefly review the origins and development of the comparability requirement for a section 212(c) waiver. We will then examine the recently promulgated section 212(c) regulation and its explicit requirement that a respondent in removal proceedings who applies for a waiver must demonstrate a "statutory counterpart" in the grounds of inadmissibility. Executive Office for Immigration Review; Section 212(c) Relief for Aliens With Certain Criminal Convictions Before April 1, 1997, 69 Fed. Reg. 57,826, 57,835 (Sept. 28, 2004) () (effective Oct. 28, 2004).1 As discussed below, our precedent decisions and the newly promulgated regulatory provision indicate that the "sexual abuse of a minor" category in the aggravated felony definition does not have a "statutory counterpart" in the grounds of inadmissibility.
Former section 212(c) of the Act provided for a discretionary waiver of certain grounds of inadmissibility under section 212(a) for "[a]liens 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." In Francis v. INS, 532 F.2d 268 (2d Cir. 1976), the court held that the constitutional requirements of due process and equal protection required that the section 212(c) waiver be afforded to nondeparting lawful permanent resident aliens, as well as those who had proceeded abroad. In Matter of Silva, 16 I&N Dec. 26 (BIA 1976), we adopted the holding of the Francis court and concluded that section 212(c) permits a waiver of a ground of inadmissibility to a permanent resident alien in deportation proceedings regardless of whether he departs the United States following the act or acts which render him deportable.
In subsequent cases, we held that section 212(c) applied only to those charges of deportability for which there was a comparable ground of inadmissibility. See, e.g., Matter of Wadud, 19 I&N Dec. 182 (BIA 1984); Matter of Granados, 16 I&N Dec. 726 (BIA 1979). The Attorney General affirmed this approach in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), holding that section 212(c) should not be afforded for a ground of deportability that is not also a waivable ground of inadmissibility under section 212(a).
In Matter of Meza, 20 I&N Dec. 257 (BIA 1991), we first addressed the question of comparable grounds in a case involving an aggravated felony ground of deportability. In Matter of Meza, we held that "a waiver under section 212(c) is not unavailable to an alien convicted of an aggravated felony simply because there is no ground of exclusion which recites the words, `convicted of an aggravated felony,' as in section 241(a)(4)(B) of the Act." Id. at 259. We referred, instead, to the specific category of aggravated felony charged, section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (Supp. III 1991), which referred to "any illicit trafficking in any controlled substance . . ., including any drug trafficking crime." The comparable ground of inadmissibility at issue, former section 212(a)(23)(A) of the Act, 8 U.S.C. § 1182(a)(23)(A) (Supp. I 1989), referred to convictions for "violation of, or a conspiracy to violate, any law or regulation . . . relating to a controlled substance." We concluded that "as the respondent's conviction for a drug-related aggravated felony clearly could also form the basis for excludability under section 212(a)(23), he is not precluded from establishing eligibility for section 212(c) relief based on his conviction for an aggravated felony." Matter of Meza, supra, at 259.
In Matter of Montenegro, 20 I&N Dec. 603 (BIA 1992), the respondent was charged with deportability under former section 241(a)(2)(C) of the Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), for conviction of a firearms violation, a provision for which we had previously found no comparable ground of exclusion. See Matter of Granados, supra. The respondent argued, nonetheless, that because his firearms conviction also involved moral turpitude, he would be inadmissible under former section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (Supp. III 1991) (moral turpitude offenses), and that, under Matter of Meza, supra, the overlap in the coverage of the two provisions should suffice for eligibility for section 212(c) relief. We rejected this argument, finding that "section 212(c) cannot waive the charge of deportability under section 241(a)(2)(C) in the instant case because section 241(a)(2)(C) has no analogous ground of inadmissibility." Matter of Montenegro, supra, at 605. We distinguished our decision in Matter of Meza, supra, by noting that there "we addressed the unique situation created by the language and legislative history of an amendment to section 212(c) by section 511 of the Immigration Act of 1990, 104 Stat. at 5052,2 which indicated that some aggravated felons are eligible for a section 212(c) waiver in deportation proceedings even though there is no single comparable ground of exclusion based on conviction of an aggravated felony." Matter of Montenegro, supra, at 605.
Similarly, in Matter of Esposito, 21 I&N Dec. 1 (BIA 1995), we rejected arguments that a respondent who was charged with a conviction for a firearms violation under former section 241(a)(2)(C) of the Act had demonstrated a comparable ground of exclusion even though the firearms violation was arguably one of two or more crimes which could render the alien inadmissible for conviction of multiple crimes of moral turpitude. We again distinguished Matter of Meza, supra, as a decision that "is limited to the...
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