|
The Board of Immigration Appeals has concluded that a
lawful permanent resident who was convicted for sexual abuse of a minor in 1992
is not eligible for a waiver under former section 212(c) of the Immigration and
Nationality Act. The ruling serves to bar immigration judges from granting
discretionary relief to many LPRs who would otherwise qualify for consideration
because their convictions occurred prior to 1996.
Former section 212(c) is a discretionary waiver that
is available to lawful permanent residents with at least seven years of
"unrelinquished domicile" in the United States. The statute was narrowed by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and then repealed
by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
However, this relief remains available to LPRs whose removability is based on
convictions that resulted from guilty pleas made prior to these statutory
changes, as the U.S. Supreme Court affirmed in INS v. St. Cyr, 533 U.S.
289 (2001).
The BIA's
ruling is based on a new and convoluted application of a principle that derives
from the origin of section 212(c) relief as a "waiver of excludability" -- in other
words, a form of relief available in exclusion proceedings rather than
deportation proceedings. This is the principle that the waiver is available in
deportation proceedings only in cases where a respondent is deportable on a
ground of deportability for which there is a comparable ground of
excludability. In the early days of the INA, the
BIA concluded that as a matter of
equity a 212(c) waiver should be available in deportation proceedings to an LPR
who on return to the U.S. following a departure could have been placed in
exclusion proceedings based on a charge that section 212(c) could have been
waived; the LPR should not be left without the possibility of relief simply
because the government waited to bring charges until after he or she had made an
entry into the U.S. The BIA
declined to extend this use of section 212(c) to LPRs who never departed the
U.S.; however, in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), a federal
appellate court ruled that the BIA's
failure to do so violated equal protection, and the
BIA subsequently adopted the ruling in Francis as a
national policy. Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976).
However, the BIA maintained the
general principle that the waiver is available only for a ground of deportation
that has a comparable ground of exclusion. Matter of Hernandez-Casillas,
20 I. & N. Dec. 262 (BIA 1990, A.G. 1991).
In 1988, Congress enacted a new ground of
deportability for individuals who are deportable due to conviction for an
"aggravated felony." No corresponding ground of excludability was created, and
at first blush it might appear that this would preclude the use of section
212(c) to waive a charge of deportability based on such a conviction. However,
the "aggravated felony" definition actually is composed of a collection of
different subparts, most of which describe criminal convictions that also
establish excludable offenses. Thus, in Matter of Meza, 20 I. & N. Dec.
257 (BIA 1991), the BIA found that section 212(c) relief was available to a
respondent deportable due to a conviction for an aggravated felony drug
trafficking crime, since the conviction "clearly could also form the basis for
excludability." Moreover, the fact that in 1990 Congress amended section 212(c)
to provide that the waiver not be available to a respondent convicted of an
aggravated felony who has served five years or more in prison indicates that
Congress did not envision that such a conviction in itself would bar 212(c)
relief.
The regulations issued by the attorney general in 2004
to implement the Supreme Court's decision in St. Cyr provided the first
suggestion of the new and more restrictive interpretation of the "comparable
ground" requirement that the BIA
has now adopted. 69 FR 57826-35 (Sept. 28, 2004). According to the
supplementary information to the final rule, a commentator stated that the
proposed rule should clarify that an alien charged and found deportable as an
aggravated felon is not eligible for section 212(c) relief "if there is no
comparable ground of inadmissibility for the specific category of aggravated
felony charged." 69 FR 57831-32. As examples of such categories, the
commentator mentioned the category of "Murder, Rape, or Sexual Abuse of a Minor"
and that of "Crime of Violence." According to the supplementary information, it
was in response to this comment that the final rule added to the regulation the
requirement that the waiver be available only where the respondent "is
deportable or removable on a ground that has a corresponding ground of exclusion
or inadmissibility." 69 FR 57831-32.
The BIA's
decision now adopts the commentator's contention that a respondent who is
removable based on an aggravated felony conviction for sexual abuse of a minor
is not eligible for a 212(c) waiver. While acknowledging that "there may be
considerable overlap between offenses categorized as sexual abuse of a minor and
those considered crimes of moral turpitude," the
BIA concluded that the moral
turpitude ground of inadmissibility could not be considered a "statutory
counterpart" to the ground of removal for sexual abuse of a minor.
Missing from the
BIA's highly technical analysis
was any discussion of the principle underlying the comparable ground
requirement -- essentially the concept that a waiver should be available to an LPR
in deportation proceedings who never departed the U.S. if the waiver would have
been available to the same LPR had he or she departed the U.S. and been charged
with excludability on return. Rather, the
BIA formulated the following test
for determining whether a ground of inadmissibility constitutes a "statutory
counterpart" to the ground of removability applicable to a respondent seeking a
waiver: there must be a ground of inadmissibility that "need not be a perfect
match," but that must address "essentially the same category of offenses" as the
removal ground.
Matter of Blake,
23 I. & N. Dec. 722 (BIA Apr. 6, 2005).
--By
Linton Joaquin, NILC executive
director
|
