UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
[street address]
[city, state]
File No.: A_____________________
In the Matter of )
)
___________________________ ) IN REMOVAL PROCEEDINGS
)
Respondent )
CHARGE(S):
APPLICATION(S): 212(c) waiver of deportability or removability
ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:
__________________, Attorney at Law ___________________
Assistant Chief Counsel
DECISION AND ORDER OF THE IMMIGRATION JUDGE
The Respondent is a ___ year old, single/married, male/female, native and citizen of ___________. The United States Department of Homeland Security brought these removal proceedings against the respondent under the authority of the Immigration and Nationality Act. Proceedings were commenced with the filing of a Notice to Appear with the Immigration Court. See Exhibit 1.
Removability
The Respondent admits the allegations contained in the NTA and concedes he is removable as charged. The Court therefore finds that removability has been established by clear and convincing evidence. See 8 C.F.R. § 1240.8(a); 1240.10(c).
OR
The Respondent admits:
The Respondent denies:
Evidence offered:
The Court finds:
AND
The Respondent designated ____________ as the country of removal should that become necessary. The Respondent applied for relief from removal in the form of 212(c). The Respondent’s application for 212(c) is contained in the record at Exhibit ___. Prior to the admission of the application, the Respondent was given the opportunity to make any necessary corrections to the application, and then swore or affirmed before this court that the application as corrected was all true and correct to the best of his knowledge.
STATEMENT OF THE LAW
Former section 212(c) of the Act provides that an alien lawfully admitted for permanent residence who temporarily proceeds abroad voluntarily and not under an order of deportation, and who is returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted to the United States in the discretion of the Attorney General despite the applicability of certain grounds of exclusion specified in INA § 212(a). This waiver was expanded to also be available to lawful permanent residents who did not proceed abroad, but risked losing their LPR status due to charges of deportability or removability. See Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976). However, section 212(c) relief applies only to charges of deportability or removability for which there are comparable grounds of exclusion or inadmissibility. 8 C.F.R. § 1212.3(f)(5); Matter of Hernandez-Casillas, 20 I. & N. Dec. 262 (BIA 1990; A.G. 1991); see, e.g., Matter of Wadud, 19 I. & N. Dec. 182 (BIA 1984); Matter of Granados, 16 I. & N. Dec. 726 (BIA 1979).
On November 29, 1990, the Immigration Act of 1990 (“IMMAct”) amended section 212(c) to ban aggravated felons from applying for relief under § 212(c) if they had served a term of imprisonment of at least five years. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. On April 24, 1996, section 212(c) was amended by section 440(d) of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which further reduced the class of aliens eligible for relief from removal. Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214. Section 440(d) of AEDPA made the following classes of aliens ineligible for § 212(c) relief: (1) aggravated felons; (2) those convicted of controlled substance offenses; (3) those convicted of firearm offenses; (4) those convicted of certain miscellaneous crimes, such as espionage; and (5) those convicted of multiple CIMTs. AEDPA § 440(d); see also INA § 212(c) (1995). Section 212(c) was subsequently repealed by section 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”).
In 2001, the United States Supreme Court rendered a decision in INS v. St. Cyr, holding that section 212(c) relief remains available to aliens, irrespective of when they were put into proceedings, if their “convictions were obtained through plea agreements [prior to April 1, 1997] 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). Employing the retroactivity analysis formulated in Landgraf v. USI Film Products, et al, 511 U.S. 244 (1994), the Supreme Court in St. Cyr determined that section 304(b) of IIRIRA, when applied to aliens who had entered into plea agreements in reliance on the availability of such relief, caused an impermissible retroactive effect. Id. Thus, section 304(b) of IIRIRA could not be applied retroactively in such cases. Id.; see also 8 C.F.R. §§ 1003.44, 1212.3, 1240.1.
ANALYSIS AND FINDINGS
1. Availability of § 212(c)
• Ineligible for § 212(c) if the ground of deportation or removal does not have a statutory counterpart in § 212. See 8 C.F.R. § 1213(f)(5).
• Plea Agreements:
• note: date of plea agreement is date it was agreed to by the parties, not the date on which the plea agreement was entered by a court. 8 C.F.R. §§1212.3(h); 1003.44(b).
□ eligible for § 212(c):
• plea agreement was made before (even if not entered until after) April 24, 1996. See 8 C.F.R. § 1212.3(h)(1).
• plea was made after April 24, 1996 (date of AEDPA enactment but before April 1, 1997 (date of IIRIRA enactment) and complies with AEDPA § 440(d).
See C.F.R. 1212.3(h)(2).
• Matter of Fuentes-Campos, 21 I. & N. Dec. 905 (BIA 1997) (§ 212(c) relief available to person in exclusion proceedings initiated post- AEDPA but pre-IIRIRA).
• But see:
► 2nd Circuit: Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004) (remanding case to district court to determine whether alien who was convicted after trial could make an individualized showing that he detrimentally relied on the availability of 212(c)); see also Wilson v. Gonzales, 471 F.3d 111,122 (2d Cir. 2006).
► 6th Circuit: Garcia-Echaverria v. U.S., 376 F.3d 507, 515-516 (6th Cir. 2004) (finding no reliance and therefore no § 212(c) eligibility where guilty plea entered after AEDPA but before IIRIRA ).
► 11th Circuit: Oguejiofor v. Attorney General of U.S., 277 F.3d 1305, 1309-10 (11th Cir. 2002) (finding in dicta that an alien who entered a guilty plea post- AEDPA cannot claim § 212(c) is being denied retroactively).
• alien committed an aggravated felony or felonies and served five years but his/her plea agreement(s) was made before November 29, 1990. See 8 C.F.R. § 1212.3(f)(4)(ii).
□ ineligible for a § 212(c) waiver:
• plea was made after April 1, 1997. 8 C.F.R. § 1212.3(h)(3).
• Individual has pre-IIRIRA conviction after trial (not after guilty plea):
□ Ineligible for § 212(c)
• the DHS and some courts have been unwilling to allow § 212(c) relief to individuals convicted after trial. 8 C.F.R. § 1212.3(f).
• 1st Circuit: Dias v. INS, 311 F.3d 456 (11th Cir. 2002)
• 2nd Circuit: Rankine v. Reno, 319 F.3d 93 (2d Cir. 2003); Thom v. Ashcroft, 369 F.3d 158, 161-64 (2d Cir. 2004)
• 4th Circuit: Chambers v. Reno, 307 F.3d 284 (4th Cir. 2002)
• 5th Circuit: Hernandez-Castillo v. Moore, 436 F.3d 516, 519-20 & n.3 (5th Cir. 2006)
• 9th Circuit: Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-1122 (9th Cir. 2002)
□ Eligible for §212(c)
• 3rd Circuit: Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004) (finding § 212(c) relief available where defendant elected to go to trial relying on the fact that he would be eligible for § 212(c); AEDPA/IIRIRA should not retroactively bar relief) Atkinson v. Attorney General, 479 F.3d 222 (3d Cir. 2007) (finding § 212(c) relief was available following a conviction by trial if this relief was available at the time of trial, even if the defendant was not offered a plea bargain).
• 6th Circuit: Thaqi v. Jennifer, 377 F.3d 500 (6th Cir. 2004) (holding that § 212(c) was available where individual was deportable for the commission of two crimes, first based on conviction and second based on guilty plea prior to AEDPA)
• The person is inadmissible under INA §§ 212(a)(3)(A), (B), (C), (D), (E), or 212(a)(10)(C) for security, terrorism, foreign policy, Nazism, or international child abduction grounds. See 8 C.F.R. §§ 1212.3(f)(3), (5)
• Terrorism: Ninth Circuit held that bar to § 212(c) may be applied retroactively to terrorist charges because there is no reliance on legal status when committing the act. Kelava v. Gonzales, 434 F.3d 1120, 1124 (9th Cir. 2006)
2. Statutory Eligibility Factors for §212(c) waiver
A. Alien is subject to a ground of deportability or removability specified in INA §212(a) which has a comparable ground of exclusion or inadmissibility. See 8 C.F.R. 1213(f)(5).
• A charge of deportability or removability is considered a comparable ground to a charge of inadmissibility when similar language is used to describe “substantially equivalent categories of offenses.”
• Matter of Blake, 23 I. & N. Dec. 722, 728 (BIA 2005) (finding that the broadly defined inadmissibility ground of crimes involving moral turpitude is not a statutory counterpart for an aggravated felony charge involving sexual abuse of a minor); compare Matter of Meza, 20 I. & N. Dec. 257 (BIA 1991) (finding that for the specific category of aggravated felony charged, i.e. illicit trafficking in a controlled substance, there was a comparable ground of inadmissibility at former INA § 212(a)(23)(A), which referred to convictions for crimes related to a controlled substance)
• But see:
► 2nd Circuit: Blake v. Carbonne, 489 F.3d 88 (2d Cir. 2007) (holding that the statutory counterpart test should be based on whether the underlying offense would render an alien excludable as well as removable, rather than on a comparison of the language used in the INA to describe the two categories of offenses)
► Matter of Brieva-Perez, 23 I. & N. Dec. 766, 771-73 (BIA 2005) (finding respondent ineligible for § 212(c) relief where there was only an “incidental overlap” between the ground of removability and the ground of inadmissibility)
► Sena v. Gonzales, 428 F.3d 50, 53-54 (1st Cir. 2005) (finding alien ineligible for § 212(c) where ground of removability, encouraging another alien to reside illegally in the U.S., did not have a comparable ground of inadmissibility)
► No comparable inadmissibility charge for a firearms offense
► BIA: 23 I. & N. Dec. 722, 728 (BIA 2005) (“Although many firearms offenses may also be crimes of moral turpitude, the category of firearms offenses is not a statutory counterpart to crimes of moral turpitude”); Matter of Granados, 16 I. & N. Dec. 726 (finding no comparable ground of exclusion for a deportable firearms offense); Matter of Montenegro, 20 I. & N. Dec. 603 (BIA 1992) (finding that inadmissibility for a crime involving moral turpitude is not a comparable offense to removability for a firearms offense)
► 2nd Circuit: Drax v. Reno, 338 F.3d 98, 110 (2d Cir. 2003); Cato v. INS, 84 F.3d 597, 600 (2d Cir. 1996) (finding no comparable ground of exclusion for a weapons offense)
► No comparable inadmissibility charge for a crime of violence as defined under section 101(a)(43)(F) of the Act. Matter of Brieva-Perez, 23 I. & N. Dec. 766 (BIA 2005)
B. The alien has been lawfully admitted for permanent residence
• must have been properly obtained.
• an alien who acquired permanent residence through fraud or misrepresentation has never been lawfully admitted for permanent residence. Matter of Koloamatangi, 23 I. & N. Dec. 548, 552 (BIA 2003)
• alien ineligible where LPR status was gained through fraud or through agency mistake. Arrelano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005)
• alien ineligible where alien failed to disclose foreign convictions that would have barred LPR status originally. Monet v INS, 791 F.2d 752 (9th Cir. 1986)
C. Alien has maintained lawful domicile in the U.S., as either a lawful permanent resident or a lawful temporary resident, for at least seven consecutive years immediately preceding the filing of the application
• Lawful, unrelinquished domicile is deemed to end on the date of the final administrative order of deportation or removal. 8 C.F.R. § 1003.44(b)(3)
• 5th Circuit: 212(c) available to persons who did not obtain 7 years of LPR status until after his or her plea, but would have been eligible under prior law. Alvarez-Hernandez v. Acosta, 401 F.3d 327, 329-32 (5th Cir. 2005)
C. Alien has not been convicted of an aggravated felon
• Exceptions:
• alien is eligible to apply for a waiver under INA § 212(c) if he was convicted of an aggravated felony pursuant to a plea agreement made before November 29, 1990. 8 C.F.R. § 1212.3(f)(4)
• alien who has convictions for one or more aggravated felonies entered pursuant to plea agreements made on or after November 29, 1990, but prior to April 24, 1996, is ineligible for section 212(c) relief only if he or she has served a term of imprisonment of five years or more for such aggravated felony or felonies. 8 C.F.R. 1212.3(f)(4)(i). A petitioner’s pre-conviction detention is properly considered part of his or her “term of imprisonment.” Spina v. Dep’t of Homeland Sec., 470 F.3d 116, 129 (2d Cir. 2006).
SUMMARY OF STATUTORY ELIGIBILITY FACTORS
If no issue as to statutory eligibility, sum up as follows:
• The respondent has been admitted as a lawful permanent resident and has maintained lawful domicile in the United States for at least 7 consecutive years immediately prior to the filing of this application.
• The respondent has been charged with deportability /removability on the basis of _____. This ground of deportability/removability has a comparable ground of exclusion or inadmissibility in INA Section ________.
• The respondent is statutorily eligible for a § 212(c) waiver because ________________.
• Therefore, this case centers on the discretionary balance of factors within the framework of Matter of Marin, 16 I. & N. Dec. 581, 584-585 (BIA 1978).
3. Discretion
• applicant for § 212(c) waiver bears the burden of demonstrating that his application warrants a favorable exercise of discretion. Matter of Marin, 16 I. & N. Dec. at 584-585
• each case must be judged on its own merits and both adverse and positive factors should be considered. Id.; Matter of Edwards, 20 I. & N. Dec. 191, 196 (BIA 1990).
• Negative Factors
• nature and underlying circumstances of exclusion grounds
• additional significant violations of INA
• existence of criminal record
• other evidence of bad character or undesirability
• May not be considered as negative factors
• children born out-of-wedlock or private sexual conduct between consenting adults, Yepes-Prado v. INS, 10 F.3d 1363, 1370 (9th Cir. 1993)
• Positive Factors
• Note on outweighing adverse factors:
• The severity of adverse factors in a particular case may require that the alien to introduce offsetting favorable evidence involving “unusual” or “outstanding” equities. Matter of Marin, 16 I. & N. Dec. at 585-586; see also Matter of Edwards, 20 I. & N. Dec. 191, 196 (BIA 1990); Matter of Buscemi, 19 I. & N. Dec. 628, 633 (BIA 1988) (holding that whether an applicant is required to show “unusual” or “outstanding” equities depends on the gravity of the offense).
• An alien who demonstrates unusual or outstanding equities merely satisfies the threshold test for having a favorable exercise of discretion considered; such demonstration does not compel that discretion be favorably exercised. Matter of Buscemi, 19 I. & N. Dec. at 634.
• family ties within the U.S.
• residency of long duration in the U.S.
• evidence of hardship to the respondent and family if deportation occurs
• service in the armed forces
• employment history
• existence of property or business ties
• existence of value and service to the community
• proof of genuine rehabilitation if a criminal record exists
• evidence responding to a respondent’s good character
• likelihood of persecution in country of origin. See Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992); but see Matter of D-, 20 I. & N. Dec. 915 (BIA 1994) (finding that although the Immigration Judge should consider evidence of general country conditions, he/she should not assess whether applicant qualifies for asylum or withholding and does not have to consider affidavits submitted in support of asylum application
• 7th Circuit: IJ should consider actual or potential pregnancy of alien or alien’s partner/girlfriend. See Drobny v. INS, 947 F.2d 241, 246 (7th Cir. 1991) (reversing IJ denial of 212(c) where girlfriend’s pregnancy was not considered as discretionary factor)
SUMMARY OF DISCRETIONARY FACTORS
In sum, after weighing the favorable and adverse factors, the Court finds that the totality of the evidence indicates that the Respondent has/has not demonstrated that he/she merits a favorable exercise of discretion. See Matter of Edwards, 20 I. & N. Dec. 191 (BIA 1990) (holding that the Immigration Judge and the BIA must conduct a “a complete review of the favorable factors in his case”). Accordingly, the Court finds that the Respondent merits/does not merit a waiver of exclusion/inadmissibility pursuant to Section 212(c) of the Act.
ORDER
IT IS HEREBY ORDERED that the respondent's application for a waiver of exclusion/inadmissibility under former section 212(c) of the Immigration and Nationality Act be GRANTED.
OR
IT IS HEREBY ORDERED that the respondent's application for a waiver of exclusion/inadmissibility under former section 212(c) of the Immigration and Nationality Act be DENIED.
IT IS HEREBY ORDERED that the respondent be deported from the United States to ________ [country of designation] based on the charges contained in the NTA.
_________________ _____________________
Date Immigration Judge