Criminal Defense of Immigrants

 

(C)  Analogous Grounds.  New Regulations:  The new regulations explicitly state that a noncitizen is ineligible for § 212(c) relief who is “deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act.”[363]

 

Applying the new regulations, the BIA held in Matter of Blake that a noncitizen subject to removal as an aggravated felon convicted of sexual abuse of a minor is not eligible to waive the conviction under INA § 212(c) because that aggravated felony ground of removal “has no statutory counterpart in the grounds of inadmissibility in section 212(a) of the Act.”[364]  This is a very narrow reading of the new regulation, and rejects the idea that an aggravated felony offense may be waived if the offense also triggers inadmissibility under INA § 212 as a crime of moral turpitude.[365]  The BIA did not, however, overrule an earlier decision stating that drug-related aggravated felonies under INA § 101(a)(43)(B) can be waived by § 212(c).[366]

                Despite this decision, there are a number of situations where Matter of Blake should not bar an applicant convicted of an aggravated felony from obtaining relief under INA § 212(c):

 

                1.  Where the noncitizen is charged with inadmissibility.  Even though the offense may qualify as an aggravated felony, the noncitizen is waiving the offense as it relates to a charge of inadmissibility, to which § 212(c) explicitly applies.[367] 

 

2.  A very old BIA case may be of use to a noncitizen who was convicted of a crime, traveled outside of the United States at least once, was (mistakenly, but lawfully) re-admitted, and then placed in proceedings and charged with deportation.  In Matter of GA,[368] the BIA allowed a noncitizen in deportation proceedings to apply for INA § 212(c) relief where the noncitizen had traveled out of the United States after conviction but before the deportation proceedings, on the theory that the INS should not have admitted the person after the conviction without a § 212(c) waiver, and that an IJ can grant the 212(c) waiver nunc pro tunc to the prior post-conviction/pre-deportation proceedings entry to the United States.

 

                3.  Where the noncitizen is charged with deportability, but is applying for adjustment of status.  Just prior to the publication of Blake, the BIA reaffirmed in Matter of Azurin[369] that a noncitizen charged as an aggravated felon is not barred from applying for adjustment of status under INA § 245 and that an aggravated felony offense that also triggers a ground of inadmissibility may be waived using INA § 212(c) in conjunction with the adjustment application.

 

                4.  Many offenses punished as aggravated felonies arguably do have analogous grounds of inadmissibility, including drug offenses,[370] money laundering,[371] prostitution,[372] espionage and sabotage,[373] tax evasion,[374] alien smuggling,[375] illegal re-entry,[376] and passport fraud.[377]  Some additional possibilities include trafficking in firearms or vehicles (as it relates to export violations),[378] kidnapping as it relates to children,[379] and forgery or counterfeiting as it relates to immigration documents.[380] 

 

                5.  In Matter of Brieva,[381] the BIA suggested that aggravated felony theft offenses[382] may also be waivable because, for those categories, all or nearly all of the convictions that fall within those sections are (by definition) crimes of moral turpitude.  This could also be said of murder and rape,[383] child pornography,[384]  fraud,[385] bribery,[386] and perjury.[387]

 

                6.  In Bedoya-Valencia,[388] the Second Circuit extended its holding in Francis v. INS[389] to find that INA § 212(c) relief could also waive deportability for unlawful entry without inspection, under former INA § 241(a)(1)(B), despite finding that there was no analogous ground of inadmissibility.  

 

                Matter of Blake and the regulation on which it is based are open to attack on a number of bases, including that the decision and regulation violate equal protection.[390]  However, the courts to reach this issue so far (the First, Third, Fifth, and Seventh Circuits) have upheld Blake.[391]

 

                On June 1, 2007, the Second Circuit overruled Blake on the basis that it conflicted with Francis.  The court noted that, “[t]he touchstone in Francis was the “irrelevant and fortuitous” circumstance of travelling abroad recently, 532 F.2d at 273; the decision did not consider whether equal protection required that all or even most of the offenses falling under a particular ground of deportation must also fall under the counterpart ground of exclusion.  In short, eligibility for relief in Francis turned on whether the lawful permanent resident’s offense could trigger § 212(c) were he in exclusion proceedings, not how his offense was categorized as a ground of deportation.”[392]  The court therefore announced the rule that, “petitioners’ eligibility for a § 212(c) waiver must turn on their particular criminal conduct.  If the offense that renders a lawful permanent resident deportable would render a similarly situated lawful permanent resident excludable, the deportable lawful permanent resident is eligible for a [212(c)] waiver of deportation.”[393]

[363] 8 C.F.R. § 1212.3(f)(5).

[364] Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005).  See also Matter of Brieva, 23 I. & N. Dec. 766 (BIA 2005) (applying same reasoning to aggravated felony crimes of violence).   

[365] Matter of Blake, supra, 23 I. & N. Dec. at 727.

[366] Matter of Meza, 20 I. & N. Dec. 257 (BIA 1991).

[367] A noncitizen LPR who leaves the United States during removal proceedings does not abandon a request for INA § 212(c), 8 U.S.C. § 1182(c) relief by so doing.  See Matter of Brown, 18 I. & N. Dec. 324 (BIA 1988).  The noncitizen might not be admitted (or admissible) to the United States upon return.  See INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).  On the other hand, this could be a strategy for avoiding Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005) issues.

[368] Matter of GA, 7 I. & N. Dec. 274 (BIA 1956).  See also Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971).

[369] Matter of Azurin, 23 I. & N. Dec. 695 (BIA 2005).

[370] Compare INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), with INA § § 212(a)(2)(A)(i)(II), (C), 8 U.S.C. § § 1182(a)(2)(A)(i)(II), (C).  See also Matter of Meza, 20 I. & N. Dec. 257 (BIA 1991).

[371] Compare INA § 212(a)(2)(I), 8 U.S.C. § 1182(a)(2)(I), with INA § 101(a)(43)(D), 8 U.S.C. § 1101(a)(43)(D).

[372] Compare INA § 212(a)(2)(D), 8 U.S.C. § 1182(a)(2)(D), with INA § 101(a)(43)(K), 8 U.S.C. § 1101(a)(43)(K).

[373] Compare INA § 212(a)(3)(A)(i), 8 U.S.C. § 1182(a)(3)(A)(i), with INA § 101(a)(43)(L), 8 U.S.C. § 1101(a)(43)(L).

[374] Compare INA § 212(a)(10)(E), 8 U.S.C. § 1182(a)(10)(E), with INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii).

[375] Compare INA § 212(a)(6)(E), 8 U.S.C. § 1182(a)(6)(E), with INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N).  But see Sena v. Gonzales, 428 F.3d 50 (1st Cir. Nov. 2, 2005) (relief under former INA § 212(c), 8 U.S.C. § 1182(c) unavailable to aggravated felon, since encouraging a noncitizen to reside in the United States in violation of law, an aggravated felony under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), is not comparable to encouraging a noncitizen to enter the United States in violation of law, under INA § 212(a)(6)(E), 8 U.S.C. § 1182(a)(6)(E)).

[376] Compare INA § 212(a)(9)(A)(i), 8 U.S.C. § 1182(a)(9)(A)(i), with INA § 101(a)(43)(O), 8 U.S.C. § 1101(a)(43)(O).

[377] Compare INA § 212(d)(2), 8 U.S.C. § 1182(d)(2), with INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P).

[378] Compare INA § 212(a)(3)(A)(i)(II), 8 U.S.C. § 1182(a)(3)(A)(i)(II), with INA § § 101(a)(43)(C), (R), 8 U.S.C. § § 1101(a)(43)(C), (R).

[379] Compare INA § 212(a)(10)(C)(iii), 8 U.S.C. § 1182(a)(10)(C)(iii), with INA § 101(a)(43)(H), 8 U.S.C. § 1101(a)(43)(H).

[380] Compare INA § 212(d)(2), 8 U.S.C. § 1182(d)(2), with INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[381] Matter of Brieva, 23 I. & N. Dec. at 772 (BIA 2005).

[382] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[383] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).

[384] INA § 101(a)(43)(I), 8 U.S.C. § 1101(a)(43)(I).

[385] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[386] INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[387] INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).

[388] Bedoya-Valencia v. INS, 6 F.3d 891 (2d Cir. 1993).

[389] Francis v. INS, 532 F.3d 268 (2d Cir. 1976).

[390] See K. Brady, J. Rollin, and A. Benson, Defense Strategies for Applying for § 212(c) Relief in Light of Matter of Blake, 10 Bender’s Immigr. Bull. 1843, 1853 (Dec. 15, 2005), for an outline of these arguments.

[391] Vo v. Gonzales, 482 F.3d 363 (5th Cir. Mar. 19, 2007); Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. Mar. 19, 2007); Avilez-Granados v. Gonzales, 481 F.3d 869 (5th Cir. Mar. 19, 2007); Dalombo Fontes v. Gonzales, 483 F.3d 115 (1st Cir. Mar. 30, 2007); Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. Feb. 7, 2007) (former INA § 212(c) relief unavailable to waive aggravated felony crime of violence, even if offense itself is also a crime of moral turpitude; look to categories of removal, not nature of crimes) [note that the concurring opinion suggests that a noncitizen who is deportable on the basis of an aggravated felony that would also render noncitizen deportable on the basis of a CMT may still be eligible for § 212(c) relief]; Valere v. Gonzales, 473 F.3d 757 (7th Cir. Jan. 11, 2007) (petition for review denied where there is no statutory counterpart for petitioner’s crime of indecent assault on a child, so he was not similarly situated to an inadmissible, returning alien who is eligible to apply for relief under former INA § 212(c), thus there is no violation of equal protection) [note: the court stated many times that the issues in this case were not clearly presented; there may still be an opportunity for counsel to bring a challenge to Blake on grounds other than those discussed in this case].

[392] Blake, et. al v. Gonzalez, __ F.3d __, slip op. at 23-24 (2d. Cir. Jun. 1, 2007).

[393] Id. at 25-26.