Defense Strategies for Applying for §212(c) relief in light of Matter of Blake
By Katherine Brady,1 Joseph Justin Rollin,2 and Robert B. Jobe3
Introduction
In Matter of Blake,4 the Board of Immigration Appeals held that a permanent
resident who was convicted of an aggravated felony “sexual abuse of a minor” offense
could not apply for relief under former INA § 212(c) as a defense to deportability in
removal proceedings. The Board applied 8 C.F.R. § 1202.3(f)(5) (2004)5 to severely
limit which aggravated felony offenses can be waived under § 212(c) as a defense to
deportability, holding that because there is no specific statutory counterpart in the
grounds of inadmissibility – i.e., there is no “sexual abuse of a minor” inadmissibility
ground listed at INA §212(a) – the § 212(c) waiver was not available to Mr. Blake. At
the same time, the BIA recognized that a waiver under § 212(c) is available to waive an
aggravated felony controlled substances offense, based on the theory that INA §
101(a)(43)(B) (drug trafficking aggravated felony) is comparable to INA § 212(a)(2)(C)
(drug trafficking ground of inadmissibility).6
This article suggests strategies for arguing that your client is eligible for a waiver
under § 212(c) despite Blake. It discusses where Blake does not apply, outlines eight
possible arguments for contesting Blake and the new regulation, as well as strategies for
qualifying for §212(c) within the rules set out in Blake.
A. Where Blake Does Not Apply: Admission and Adjustment
1
Katherine Brady is a senior staff attorney at the Immigrant Legal Resource Center. She has
authored several works on immigration law, and is the principal author of California Criminal
Law and Immigration (www.ilrc.org) and the California Quick Reference Chart
(www.ilrc.org/criminal.html).
2
Joseph Justin Rollin is an associate at the Law Offices of Norton Tooby. With Norton Tooby,
he is the co-author of Safe Havens and Crimes Involving Moral Turpitude (available at
www.criminalandimmigrationlaw.com). He also co-created the Immigration Analysis of The
Offenses Under the Revised Code of Washington (RCW) chart with Ann Benson, of the
Washington Defender’s Immigration Project (available on www.defensenet.org).
3
Robert B. Jobe practices law in San Francisco, California. He is the author of articles and books on
immigration law and has litigated key cases in federal courts and the Supreme Court. He is the recipient of
several awards for advocacy, including the AILA Jack Wasserman Award for Excellence in Immigration
Litigation and the ILRC Phillip Burton Award for Outstanding Immigration Lawyering.
4
Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005).
A waiver under former § 212(c) is unavailable where, “[t]he alien 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.” 8 C.F.R. § 1212.3(f)(5). This language
was added as the result of a single comment submitted to the Department of Justice following
publication of the proposed regulations.
6
See Matter of Meza, 20 I&N Dec. 257 (BIA 1991). Further, the cases before the Court in St. Cyr
involved convictions for aggravated felony drug offenses, a category of offenses recognized as
comparable to the § 212(a) ground of inadmissibility for drug trafficking offenses. INS v. St. Cyr,
553 U.S. 289 (2001).
5
1
Matter of Blake and the comparable grounds analysis only applies to noncitizens
who are charged under a ground of deportability, under INA § 237(a).7 Returning lawful
permanent residents who are charged under a ground of inadmissibility, under INA §
212(a), are not barred by Blake from seeking § 212(c) relief.
Shortly before Blake, in Matter of Azurin,8 the Board held that a permanent
resident may avoid deportation on the basis of an aggravated felony offense that also
triggers inadmissibility (e.g. as a crime of moral turpitude) by making an application to
adjust status in conjunction with an application for § 212(c) relief in order to waive the
offense as a ground of inadmissibility. This case reaffirmed the rule in Matter of
Rainford9 and Matter of Gabryelsky,10 that a noncitizen charged under a ground of
deportation, who either is admissible or can waive inadmissibility, may (re-)adjust status
to permanent residency as a way to avoid deportation. The BIA (foreshadowing Blake),
allowed Mr. Azurin to obtain a new green card, and waive his crime of moral
turpitude/aggravated felony offense, despite finding that the aggravated felony ground (a
crime of violence in this case) lacked a corresponding ground of inadmissibility.11 In the
First,12 Third,13 and Ninth14 Circuits a returning permanent resident can also apply to readjust with a § 212(c) waiver, if necessary.
B. Contesting Blake and the Regulation
1.
The construction of 8 C.F.R. § 1212.3(f)(5) (2004) given in the Preamble to
the regulation (“the Preamble”) 15 and in Matter of Blake squarely
7
See Matter of Esposito, 21 I&N Dec. 1 (BIA 1995) (comparable grounds analysis applies to
noncitizens in deportation proceedings; 212(c) is unavailable to waive deportation under firearms
ground).
8
Matter of Azurin, 23 I. & N. Dec. 695 (BIA 2005).
9
Matter of Rainford, 20 I&N Dec. 598 (BIA 1992) (conviction that renders noncitizen deportable
as a firearms offense, under INA § 241(a)(2)(C), does not preclude a finding of admissibility in
connection with an application for adjustment of status, made in order to avoid deportation on the
basis of the firearms offense).
10
Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993) (a waiver under INA § 212(c) may be used
in conjunction with an application for adjustment of status to allow a noncitizen to waive a
ground of inadmissibility with no corresponding ground of deportation, and then adjust status to
avoid a separate ground of deportability).
11
Matter of Azurin, supra, at 695.
12
Succar v. Ashcroft, 394 F.3d 8 (1st Cir. Jan. 5, 2005) (8 C.F.R. § 245.1(c)(8), which bars
noncitizens who have been paroled into the United States and placed in removal proceedings
from applying for adjustment of status, held invalid as inconsistent with 8 U.S.C. § 1255(a)). But
see, Mouelle v. Gonzalez, 416 F.3d 923 (8th Cir. 2005) (rejecting Succar).
13
Zheng v. Gonzalez, 422 F.3d 98 (3d Cir. Sept. 8, 2005) (8 C.F.R. § 245.1(c)(8) not a reasonable
interpretation of 8 U.S.C. § 1255(a)).
14
Bona v. Gonzales, __ F.3d __ (9th Cir. Sept. 30, 2005), following Succar, supra.
15
See Federal Register September 28, 2004 (Volume 69, Number 187), pages 57831-32.
“I. Eligibility for Aliens Who Are Deportable on Grounds for Which There Do Not Exist
Corresponding Grounds of Exclusion or Inadmissibility.” The text of the Preamble is provided in
a footnote below.
2
contradicts the reasonable and consistent holdings of on-point BIA and
federal precedent, that § 212(c) is available to waive an aggravated felony
conviction that is also a crime involving moral turpitude.
Applying the “comparable grounds” analysis, the Board rejected Mr. Blake’s
argument that he should qualify for § 212(c) relief because the aggravated felony sexual
abuse of a minor offense was also a crime involving moral turpitude, and therefore could
have triggered inadmissibility.16 While this analysis has been applied to firearms17 and
certain other grounds of inadmissibility,18 the Board erred in applying this analysis to
aggravated felonies that are also crimes of moral turpitude.19
The text of § 212(c) itself, as well as past Board and federal court of appeals
decisions, demonstrate that non-drug aggravated felonies that were also crimes of moral
turpitude ground could be waived under INA §212(c), as long as the other § 212(c)
requirements were met. Former § 212(c), as amended in 1990 and 1991, provided that
the relief was available as long as the noncitizen had not served an aggregate term of
imprisonment of at least five years for one or more aggravated felonies.20 The prior
regulation on § 212(c) relief likewise stated only that a noncitizen convicted of an
aggravated felony was ineligible if the noncitizen “has served a term of imprisonment of
at least five years for such conviction.”21 The reasonable construction of this provision is
and was that aggravated felons without such a period of incarceration would qualify, as
long as the conviction caused inadmissibility.
Prior to Matter of Blake, noncitizens with non-drug aggravated felonies were
routinely found eligible for § 212(c) relief when the offense was also a crime involving
moral turpitude. The Board specifically recognized that aggravated felonies were not
subject to the comparable grounds requirement that it applied to firearms In Matter of
Meza22 the Board stated that “a waiver under 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.’”23 In Matter of Montenegro24 and
16
Matter of Blake, 23 I. & N. Dec. at 728.
See Matter of Montenegro, 20 I&N Dec. 603 (BIA 1992) (section 212(c) is ineffective to
remove deportability for conviction of a firearms violation, even where the firearms violation is
also a crime involving moral turpitude).
18
See, e.g., Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991) (entry
without inspection), aff’d, 983 F.2d 231 (5th Cir. 1993).
19
Although Matter of Wadud, 19 I&N Dec. 182 (BIA 1984), and Matter of Jimenez-Santillano,
21 I&N Dec. 567 (BIA 1996), dismissed this argument in the context of noncitizens deportable
for violations of 18 U.S.C. § 1546 (visa fraud), the visa fraud ground of deportability (unlike
aggravated felonies), is not specifically referenced by INA § 212(c).
20
The last sentence of § 212(c), between December 12, 1991 and April 24, 1996, read “The first
sentence of this subsection shall not apply to an alien who has been convicted of one or more
aggravated felonies and has served for such felony or felonies a term of imprisonment of at least
5 years.” See discussion of this provision in Toia v Fasano, 334 F.3d 917 (9th Cir. 2003).
21
8 C.F.R. § 212.3(f)(4) (2003).
22
Matter of Meza, 20 I&N Dec. 257 (BIA 1991).
23
Id. at 259.
17
3
Matter of Esposito25 the Board referred to the “unique” situation of aggravated felonies,
which should be treated differently from firearms offenses because aggravated felonies
are specifically referenced in the statutory language of § 212(c).26 In Matter of
Hernandez-Casillas, the Attorney General noted that there were only two grounds of
deportation that “have no analogue in the grounds for exclusion.”27 Those two
exceptions were INA § 241(a)(2) (illegal reentry) and INA § 241(a)(14) (conviction of
illegal possession of certain firearms) – not aggravated felonies.28
Most specifically, in Matter of Rodriguez-Cortez, the BIA held that a noncitizen
charged in deportation proceedings as an aggravated felon for conviction of murder was
“not barred from applying for § 212(c) relief.”29 The only issue in the case was whether a
California firearms enhancement to the sentence had transformed the offense into a
“firearms offense” and therefore destroyed § 212(c) eligibility; the BIA held that it did
not. Murder is an aggravated felony that is not related to drugs, but that does involve
moral turpitude. Comparing this decision to Blake, there is no valid reason to distinguish
treatment of murder, at issue in Rodriguez-Cortes, from treatment of sexual abuse of a
minor, at issue in Blake, 30 or from other aggravated felonies that involve moral turpitude.
In addition to these published decisions, the BIA found in numerous unpublished
decisions that permanent residents convicted of non-drug related aggravated felonies
were eligible for § 212(c) relief.31
Federal courts applying St. Cyr repeatedly have extended § 212(c) eligibility to
persons convicted of aggravated felonies unrelated to drugs.32 Other federal decisions
24
Matter of Montenegro, 20 I&N Dec. 603, 605 (BIA 1992).
Matter of Esposito, 21 I&N Dec. 1 (BIA 1995).
26
In Matter of Blake the Board attempted to backtrack from this, stating, “To the extent that our
comments in Matter of Montenegro, supra, and Matter of Esposito, supra, may have suggested a
more relaxed approach to the analysis of comparable grounds in cases involving aggravated
felony grounds of removal, the recently enacted regulation clarifies that the same test for
comparability applies to aggravated felony grounds of removal as applies to other removal
provisions.” Matter of Blake, supra, at 728.
27
Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 282 n. 4 (BIA, A.G. 1991).
28
At that time the aggravated felony ground was located at INA § 241(a)(4)(B).
29
Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587, 590-91 (BIA 1992).
30
Both murder and sexual abuse of a minor appear at INA §101(a)(43)(A), 8 USC §1101(a)(43).
31
For example, the following unpublished cases held crimes of violence to be eligible for §212(c)
relief: Matter of Juan Reynald Davila Munoz, 28 Immig. Rptr. B1-1 (BIA 2003); In re Reyes
Manzueat (File A93-022-672-New York, BIA 2003); In re Santos-Jones (File A92-292-279-San
Diego, BIA 2003); In re Duenas-Curiel (File A37-519-662-San Francisco 2001); In re SantosJones (File A92-292-279-San Diego, Immigration Court 2002).
32
A non-exhaustive list includes United States v. Leon-Paz, 340 F.3d 1003 (9th Cir. 2003)
(burglary conviction is waivable under §212(c)); United States v. Ortega-Ascanio, 376 F. 3d 879
(9th Cir. 2004) (conviction for sexual battery is waivable under St. Cyr provisions for §212(c), so
IJ’s failure to inform the respondent of eligibility to apply for discretionary relief 212(c) violated
the respondent’s due process rights); Cordes v. Gonzales, 421 F.3d 889 (9th Cir. 2005) (crime of
25
4
have denied §212(c) relief for non-drug aggravated felonies on bases related to the
specific coverage of St.Cyr, but otherwise found that § 212(c) would have been
available.33 These decisions demonstrate that this was the interpretation of § 212(c)
recognized by federal judges, attorneys, and apparently the government. In these cases it
appears that government attorneys did not even argue that non-drug aggravated felonies
were not amenable to § 212(c) relief. The authors are aware of no decision in which a
federal court denied § 212(c) based on lack of a “comparable ground” of inadmissibility
for aggravated felonies. The federal cases cited by the BIA in Matter of Blake, such as
Cato v INS34 and Cabasug v INS,35 involved persons who were deportable under the
firearms ground, based on convictions that were not aggravated felonies and in fact did
not cause inadmissibility under any ground.
The BIA itself seems to have difficulty with Blake. In Matter of Brieva,36 the
BIA held that under Blake, the aggravated felony “crime of violence” was not
substantially equivalent to the moral turpitude ground of inadmissibility. To justify this
decision, however, the Board provided several examples of “common” offenses that are
crimes of violence but that do not involve moral turpitude (e.g., assault, burglary without
the requisite intent).37 This line of reasoning would have been useful to Mr. Blake, since,
in contrast to the crime of violence category, virtually every offense involving sexual
abuse of a minor involves moral turpitude.38 Mr. Blake in fact had made the argument,
but the BIA rejected it.39 The Brieva discussion was entirely superfluous under the Blake
rule, and indicates the Board’s confusion in this area.
violence); Cunningham v. US Attorney General, 335 F. 3d 1262 (11th Cir. 2003) (counterfeiting);
Adefami v. Ashcroft, 358 F. 3d 828 (11th Cir 2004) (theft).
33
See, e.g., Chambers v. Reno, 307 F. 3d 284 (4th Cir. 2002) (denied robbery §212(c) relief
because conviction was by trial); United States v.Velasco-Medina, 305 F.3d 839 (9th Cir. 2002)
(St. Cyr does not apply because burglary conviction occurred after AEDPA bar).
34
Cato v. INS, 84 F.3d 597, 600 (2d Cir. 1996) (firearms offense (which did not cause
inadmissibility under the moral turpitude ground) is not amenable to § 212(c) relief).
35
Cabasug v INS, 847 F.3d 321 (9th Cir. 1988) (firearms offense (which did not cause
inadmissibility under the moral turpitude ground) is not amenable to § 212(c) relief).
36
Matter of Brieva, 23 I&N Dec. 766 (BIA 2005).
37
“Some of the most common crimes falling within the definition of a ‘crime of violence’ do not
necessarily involve moral turpitude… Although there need not be perfect symmetry in order to
find that a ground of removal has a statutory counterpart in section 212(a), there must be a closer
match than that exhibited by the incidental overlap between section 101(a)(43)(F) (crime of
violence) and section 212(a)(2)(A)(i)(I) (crime involving moral turpitude). The distinctly
different terminology used to describe the two categories of offenses and the significant variance
in the types of offenses covered by these two provisions lead us to conclude that they are not
“statutory counterparts” for purposes of section 212(c) eligibility.” Id. at 773-774 (emphasis
added).
38
The same would be true of most, although not all, aggravated felony categories that do not
involve controlled substances. For example see theft (INA § 101(a)(43)(G)), murder and rape
(INA § 101(a)(43)(A)), fraud (INA § 101(a)(43)(M)(i)), bribery (INA § 101(a)(43)(R)), perjury
(INA § 101(a)(43)(S)).
39
Blake, supra at 727. One the BIA’s most novel bases for rejecting Mr. Blake’s argument was
that a hypothetical misdemeanor conviction for “sexual abuse of a minor” offense would be a
crime involving moral turpitude, but might come within the petty offense exception to the
5
2.
The interpretation given 8 C.F.R. §1212.3(f)(5) is impermissibly arbitrary
and capricious in that Blake and the Preamble, although claiming that the
new regulation is merely a codification of prior law, fail to acknowledge
contradictory on-point precedent.
Up until the publication of the regulation, the BIA and federal courts consistently
held that aggravated felony offenses that were also crimes involving moral turpitude or
otherwise triggered inadmissibility were waivable under § 212(c). The new interpretation
of the “comparable grounds” analysis suggested by the Preamble, and imposed by Blake,
wrongly portrays the new rule as a mere codification of existing case law, when in fact it
is a new bar to eligibility that is in conflict with precedent.40
The Preamble dealt with this conflict by declining to acknowledge or discuss the
BIA or federal court precedent that the new rule contradicted. Matter of Blake merely
stated that to the extent that Matter of Montenegro, supra, and other BIA precedent “may
have suggested a more relaxed approach to the analysis of comparable grounds in cases
involving aggravated felony grounds of removal,” these should be considered “clarified”
by the regulation.41 This put the BIA in the position of stating that prior caselaw had to
inadmissibility ground. Id at n. 3. Among other problems with this analysis, this exception could
expand to include any moral turpitude offense that could be charged as a misdemeanor, even if
the conviction causes deportability.
40
Federal Register September 28, 2004 (Volume 69, Number 187), pages 57831-32 (“I.
Eligibility for Aliens Who Are Deportable on Grounds for Which There Do Not Exist
Corresponding Grounds of Exclusion or Inadmissibility. One commenter stated that the proposed
rule should clarify that an alien charged and found deportable as an aggravated felon is not
eligible for § 212(c) relief “if there is no comparable ground of inadmissibility for the specific
category of aggravated felony charged.” The commenter continues, “[f]or example, the rule
should not apply to aggravated felons charged with deportability under specific types or
categories of aggravated felonies such as ‘Murder, Rape, or Sexual Abuse of a Minor’ or ‘Crime
of Violence’ aggravated felonies.” Thus, the commenter states that Sec. 1212.3(f)(4) should
include those aliens who have been charged with aggravated felonies for which there is no
corresponding ground of inadmissibility as being ineligible for § 212(c) relief. . . . The
commenter is correct in stating this limitation on the scope of relief available under § 212(c).
Matter of Granados, 16 I&N Dec. 726, 728 (BIA 1979) (“[I]f a ground of deportation is also a
ground of inadmissibility, section 212(c) can be invoked in a deportation hearing.”); Cabasug v.
INS, 847 F.2d 1321 (9th Cir. 1988); Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990;
A.G. 1991). In describing the eligibility requirements, the supplementary information of the
proposed rule noted that “[a]n applicant must, at a minimum, meet the following criteria to be
considered for a waiver under section 212(c): …. [t]he alien is deportable or removable on a
ground that has a corresponding ground of exclusion or inadmissibility… ” 67 FR at 5262852629. However, this requirement was not included in the regulatory language of the proposed
rule. As a result, the Department will effectuate the commenter's suggestion by adding this
requirement for section 212(c) eligibility. Accordingly, the final rule provides that an alien who is
deportable or removable on a ground that does not have a corresponding ground of exclusion or
inadmissibility is ineligible for section 212(c) relief.”).
41
Matter of Blake, 23 I&N Dec. at 728.
6
be “clarified” by the regulation, while at the same time, the Preamble states that the
regulation merely codifies the caselaw.
Neither Blake nor the Preamble cite or discuss Matter of Rodriguez-Cortes, supra,
which held that a conviction of murder, an aggravated felony, is amenable to treatment
under §212(c) in deportation proceedings. Given that Matter of Montenegro and Matter
of Rodriguez-Cortes were published within a month of each other and both concerned the
subject of §212(c) and comparable grounds, it is striking that the Preamble and Blake
both neglect to include Rodriguez-Cortes in their discussion of the history of this issue.
Even in matters, unlike the instant case, where the agency has wide discretion, “an
irrational departure from that policy (as opposed to an avowed alteration of it)” can
constitute a basis for overturning the rule.42 Ignoring on-point BIA and federal
precedent, and misrepresenting an about-face as a codification of prior law, is irrational,
arbitrary and capricious.
3.
By imposing a new bar to §212(c) retroactive to pre-1996 pleas, the Preamble
and Matter of Blake contradict the holding of the United States Supreme
Court in St. Cyr.
The Supreme Court held that §212(c) must be available today for noncitizens
“who would have been eligible for [such] relief at the time of their plea under the law
then in effect."43 The Supreme Court thereby ruled that the government cannot impose
new, retroactive bars upon applicants who would have been eligible for § 212(c) at the
time of plea.
The Preamble and Matter of Blake are in essence attempting an improper end-run
around the St. Cyr holding. The interpretation they give the regulation has the effect of
retroactively applying (with the exception of drug convictions) the AEDPA ban on
waiving aggravated felonies under §212(c), which the Court specifically forbid. Their
interpretation of the regulation exceeds the scope of the statute, and contradicts the
central tenet of the interpretation of the statute in St. Cyr, by retroactively imposing a new
bar to eligibility that was not in effect at the time of plea.
This retroactive regulatory change in eligibility requirements for § 212(c) is not
based on any change in the language of the statute, or on the particular constraints
Lal v. INS, 255 F.3d 998, 1006-07 (9th Cir. 2001), as amended on rehr’g, 268 F.3d 1148 (2001)
(finding that the BIA’s interpretation of its own regulation should be overturned because the
Board committed an arbitrary act by suddenly changing its interpretation) (“By changing its
settled practice with respect to this rule, the BIA acted impermissibly and committed an arbitrary
and capricious act. 5 U.S.C. § 706(2)(A) (2000). ‘Though the agency's discretion is unfettered at
the outset, if it announces and follows -by rule or by settled course of adjudication -a general
policy by which its exercise of discretion will be governed, an irrational departure from that
policy (as opposed to an avowed alteration of it) could constitute action that must be overturned
....’ INS v. Yueh-Shaio Yang, 519 U.S. 26, 32, 136 L. Ed. 2d 288, 117 S. Ct. 350 (1997).”).
43
INS v St. Cyr, 533 U.S. 289, 290 (2001) (emphasis added).
42
7
imposed under St. Cyr. Unlike the new requirement that a noncitizen was convicted by
plea, rather than by jury trial,44 for example, the comparable grounds issue predates St.
Cyr’s reliance requirement. The comparable grounds requirement for aggravated felonies
is a substantive law requirement, which the agency could have attempted to impose
before the AEDPA restrictions, and is not based on special issues relating to reliance.
4.
The rule in Matter of Blake requiring comparable grounds for non-drug
related aggravated felony convictions does not apply retroactively to
convictions received before September 28, 2004, the effective date of 8 C.F.R.
§ 1212.3(f)(5).
Under the test for retroactive legislation set forth in Landgraf v USI Film
Products,45 and the test for retroactive application of an adjudicatory decision set forth by
the Ninth Circuit in Montgomery Ward & Co. v Federal Trade Com.,46 the rules set forth
in Matter of Blake cannot be retroactively applied to permanent residents who pled guilty
to an aggravated felony before the effective date of 8 C.F.R. § 1212.3(f)(5).
As the Supreme Court stated in Landgraf, “the presumption against retroactive
legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries
older than our Republic.”47 The same is true for regulations.48 The Supreme Court has
held that “administrative rules will not be construed to have retroactive effect unless their
language requires this result. . . . Even where some substantial justification for
retroactive rulemaking is presented, courts should be reluctant to find such authority
absent an express statutory grant.”49
In Landgraf, the Court set out a two-step analysis for determining when the
presumption against retroactivity should not apply. First, one must “determine whether
Congress [or, in the case of a regulation, the agency promulgating it] has expressly
prescribed the statute’s proper reach.”50 If the agency explicitly states that a law should
be retroactively applied, then the inquiry ends. Otherwise, one must determine whether
the new regulation would have retroactive effect, i.e., “whether it would impair rights a
party possessed when he acted, increase a party’s liability for past conduct, or impose
new duties with respect to transactions already completed.”51 If it would have such an
8 C.F.R. § 1212.3(f)(4)(i) (“An alien whose convictions for one or more aggravated felonies
were entered pursuant to plea agreements . . .”)
45
Landgraf v USI Film Products, 511 U.S. 244, 265 (1994).
46
Montgomery Ward & Co. v Federal Trade Com., 691 F.2d 1332 (9th Cir. 1982).
47
Landgraf v USI Film Products, supra at 265.
48
See Kankamalage v INS, 335 F.3d 858 (9th Cir. 2003) (applying the Landgraf analysis to the
INS’s interpretation of the 1990 regulation barring persons who committed particularly serious
crimes and holding that the regulation could not be applied retroactively).
49
Bowen v Georgetown Univ. Hosp. 488 U.S. 204, 208 (1988). See also Hernandez-Rodriguez v
Pasquarell, 118 F.3d 1034, 1042 (5th Cir. 1997), quoting Sierra Med. Ctr. V. Sullivan, 902 F.2d
388, 392 (5th Cir. 1990) (“Generally, courts will not apply regulations retroactively unless their
language so requires.”).
50
Landgraf, supra at 280
51
Id.
44
8
effect, the new statute or regulation cannot be applied retroactively. In St. Cyr v INS, the
Supreme Court stressed that the standard for finding authorized retroactive effect is a
“demanding one” requiring “unambiguous direction.”52 Cases where the Supreme Court
has found truly retroactive effect adequately authorized by statute have involved
“statutory language that was so clear that it could sustain only one interpretation.”53
The final rule, published on September 28, 2004, is silent on the issue of whether
the comparable ground requirement for aggravated felonies found at 8 C.F.R. §
1212.3(f)(5) should be retroactively applied.54 Silence is inherently ambiguous. Further,
§ 1212.3(f)(5) can be interpreted in a way that does not require retroactive application: it
will apply prospectively to a permanent resident whose pending § 212(c) application was
filed before April 24, 1996, and who seeks to waive a conviction received on or after
September 28, 2004.
The regulation text and the Preamble to the final rule specifically provide for the
ongoing adjudication of § 212(c) applications that were filed before the AEDPA effective
date of April 24, 1996.55 Applications for §212(c) relief that were filed before April 24,
1996 are subject to pre-AEDPA rules and are not subject to cut-off dates relating to
AEDPA.56 Absent AEDPA and IIRIRA cut-off dates, there is no bar to using § 212(c) to
waive a conviction that occurred after the application was filed but prior to the date of
adjudication; it is required only that all convictions and grounds must be identified at the
time of adjudication.57 Thus a pending application for § 212(c), filed before April 24,
52
INS v St. Cyr, 533 U.S. 289,316-317 (2001).
Id. (emphasis added, internal quotation marks omitted).
54
In contrast, the Preamble to the final rule does directly discuss retroactive applications of other
sections. See, e.g., discussion of retroactivity concerns in Section A., “Ineligibility of Aliens
Outside the United States” (69 Fed. Reg at 57827-28) and discussion at Section F., “Retroactivity
of IIRIRA's Definition of “Aggravated Felony” (69 Fed. Reg. at 57830-31), as well as imposing
specific requirements on pleas filed after April 24, 1996.
55
The discussion in the Preamble, Section L establishes the need to retain 8 C.F.R. § 1212.3(g)
because of its application to cases filed before April 24, 1996. “The commenter is correct in
observing that the issue addressed in current Sec. 1212.3(g) continues to be relevant to aliens
whose deportation proceedings were commenced prior to the enactment of AEDPA. The
Department will therefore leave intact the existing provision of 8 C.F.R. 1212.3(g), which will
continue to govern cases falling within its parameters.” 69 Fed. Reg. 57826, 57832 (Sept. 28,
2004). 8 C.F.R. § 1212.3(g) reads as follows: “Relief for certain aliens who were in deportation
proceedings before April 24, 1996. Section 440(d) of Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) shall not apply to any applicant for relief under this section whose
deportation proceedings were commenced before the Immigration Court before April 24, 1996.”
56
See 8 C.F.R. § 1212.3(g), supra. Courts have held that AEDPA's restrictions on 212(c) do not
apply to individuals placed in proceedings before April 24, 1996. See, e.g., Magana-Pizano v
INS, 200 F.3d 603, 611 (9th Cir. 1999) (“Given our own analysis, and the weight of authority from
other circuits, we conclude that AEDPA § 440(d) cannot be applied to deportation cases pending
on the date AEDPA became law.”); Wallace v. Reno, 194 F.3d 279, 287 (1st Cir.1999).
57
This general rule comports with 8 C.F.R. § 1212.3(d) and was the rule universally in practice
before AEDPA.
53
9
1996, can be used to waive a qualifying conviction up until the date of adjudication,
including a conviction received on or after September 28, 2004.
The government can apply § 1212.3(f)(5) retroactively only pursuant to language
that is “so clear that it could sustain only one interpretation.” The lack of any explicit
statement that § 1212.3(f)(5) applies to noncitizens who pled guilty prior to its effective
date, the existence of an alternative interpretation in which the rule can be applied
prospectively, and the “longstanding principle of construing any lingering ambiguities in
deportation statutes [and regulations] in favor of the alien” 58 foreclose a finding that an
intention for retroactivity was sufficiently clearly expressed. Therefore, the regulation is
not necessarily retroactive, and the second step of the Landgraf analysis comes into play
to determine whether the regulation has an adverse retroactive effect.
“A statute [or regulation] has a retroactive effect when it takes away or impairs
vested rights acquired under existing laws, or creates a new obligation, imposes a new
duty, or attaches a new disability …. to transactions or considerations already past.” 59 A
rule that retroactively bars an applicant’s ability to waive conviction by plea of certain
offenses under INA § 212(c) certainly has retroactive effect, as it alters the consequences
of the guilty plea and deprives the person of benefits under § 212(c). This is the very
impact that was considered by the Supreme Court in St. Cyr. In fact, Matter of Blake
and its retroactive application of § 1212.3(f)(5) has the effect of retroactively imposing
the AEDPA bar to waiving aggravated felonies under § 212(c) (with the exception of
drug offenses) that the Supreme Court disallowed in St. Cyr. This also constitutes a
retroactive application of an agency’s adjudicative decision under the “five factor” test
set out in federal court decisions.60
5.
As a reversal of a prior agency position, the regulation and Blake do not
merit Chevron deference from a reviewing court. If § 212(c) is found to be
ambiguous in its treatment of aggravated felonies, the rule of lenity requires
any ambiguity to be resolved in favor of the noncitizen.
An agency interpretation is owed little deference when it contradicts previous
agency interpretations or is a radical departure from previous policies.61 That is the case
here, where the current interpretation squarely contradicts the BIA’s holding in
58
INS v Cardoza-Fonseca, 480 U.S. 421, 449; see also Leocal v Ashcroft, 125 S.Ct. 377, n. 8
(2004).
59
St. Cyr, 533 U.S. at 321.
60
See, e.g., Montgomery Ward & Co. v Federal Trade Com., 691 F.2d 1332, 1333 (9th Cir. 1982),
adopting the five-factor analytical framework set forth in Retail Wholesale and Department Store
Union v NLRB, 466 F.2d 380, 390-393 (D.C. Cir. 1972).
61
Where an agency interpretation contradicts previous interpretations or is a radical departure
from previous policies, far less deference is due to the agency. See, e.g., INS v Cardoza-Fonseca,
supra at 446, n. 30; Pfaff v U.S. Department of Housing and Urban Development, 88 F.3d 739,
748 (9th Cir. 1996); Lal v INS, 255 F.3d 998, 1006-07 (9th Cir. 2001), as amended on rehr’g, 268
F.3d 1148 (2001) (finding that the BIA’s interpretation of its own regulation should be overturned
because the Board committed an arbitrary act by suddenly changing its interpretation).
10
Rodriguez-Cortes, as well as statements in other Board cases discussed above and other
sections of the §212(c) regulation. Therefore, even if this interpretation were found to be
permissible because the statute was found to be ambiguous, it is not owed deference
under the Chevron test.
If §212(c) is held to be ambiguous in its application to non-drug aggravated
felonies, then courts must apply the rule of lenity, which provides that any ambiguity in
the statute must be resolved in favor of the noncitizen.62 Matter of Blake and the
Preamble do not comport with this rule, as they choose a strained and illogical
interpretation of § 212(c) that contradicts all published precedent, causes internal
inconsistency within the regulation, and attempts to sharply limit a Supreme Court
opinion.
6.
The regulation, as interpreted by Blake and the Preamble, is ultra vires to the
statute.
Courts must hold unlawful agency action that is “arbitrary or capricious” or that is
“otherwise not in accordance with law or is in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right.”63 As interpreted by the Preamble and Matter of
Blake, 8 C.F.R. § 1212.3(f)(5) is “not in accordance with law,” as it creates a new bar to
eligibility that is not reflected in the statute.
In 1990 and 1991, § 212(c) was amended to include language that barred relief
for “an alien who has been convicted of one or more aggravated felonies and has served
for such felony or felonies a term of imprisonment of at least 5 years.” The legislative
history to the 1990 amendment states, “Section 212(c) provides relief from exclusion and
by court decision from deportation …. This discretionary relief is obtained by numerous
excludable and deportable aliens, including aliens convicted of aggravated felonies.”64
The Preamble and Matter of Blake now construe the statute to mean that Congress
actually intended coverage of an extremely limited number of categories (just one so far).
Absent some additional language in § 212(c) or the legislative history, the agency’s
position that Congress intended almost all categories of aggravated felon to be barred
from § 212(c) relief is unreasonable.
62
INS v Cardoza-Fonseca, supra at 449; Leocal v Ashcroft, 125 S.Ct. 377, n. 8 (2004).
Succar v. Ashcroft, 394 F.3d 8, 20 (1st Cir. 2005) (citations and internal quotations omitted) (8
C.F.R. § 245.1(c)(8), which mandated that “arriving aliens” (including those paroled into the
United States) were ineligible to adjust status in removal proceedings, was inconsistent with INA
§ 245(a), which allows for adjustment of all noncitizens “inspected and admitted or paroled” into
the United States). The court also noted that “[t]he new regulatory scheme is . . . a break from
earlier practice.” Id., at 18. This analysis was approved in Bona v. Gonzales, __ F.3d __ (9th Cir.
2005).
64
See 136 Cong. Rec. S6586, S6604 (daily ed. May 18, 1990), legislative history to Immigration
Act of 1990 § 411(a), Pub. L. No. 101-649, 104 Stat. 4987, 5052 (effective Nov. 29, 1990).
63
11
Where “Congress has spoken clearly on the issue of eligibility for [relief] and has
reserved for itself the determination of whether a noncitizen should be able to apply for
this relief . . . [t]he Attorney General cannot promulgate a regulation that categorically
excludes from application . . . a category of otherwise eligible aliens. . .”65
The Preamble to the § 212(c) regulation states that by including 8 C.F.R. §
1212.3(f)(5), it is “adding [a] requirement for section 212(c) eligibility.”66 As discussed
elsewhere, this new eligibility requirement is not merely codifying prior caselaw, but is
announcing a whole new rule. However, Congress has already spoken as to who is
eligible for § 212(c) relief (e.g. lawful permanent residents), and who is not eligible (e.g.
otherwise eligible aggravated felons who served more than five years in prison). The
Attorney General has therefore exceeded his authority by making wholly ineligible for
relief under § 212(c) a group of lawful permanent residents who are made eligible under
the statute (e.g. aggravated felons who served less than five years in prison, and whose
aggravated felonies also trigger inadmissibility).67
7.
The Board’s narrow interpretation of 8 C.F.R. § 1212.3(f)(5) in Blake,
renders that subsection internally inconsistent with 8 C.F.R. § 1212.3(f) as a
whole.
As described above, the interpretation of 8 C.F.R. 1212.3(f)(5) in Matter of Blake
and in the Preamble is inconsistent with the text of § 212(c), and prior caselaw. In
addition, this interpretation of 8 C.F.R. § 1212.3(f)(5) is unreasonable because it creates
an internal inconsistency in the regulation and violates laws of statutory construction.
The pertinent sections of the regulation provide:
(f) Limitations on discretion to grant an application under section 212(c)
of the Act. An application for relief under former section 212(c) of the Act
shall be denied if:
*****
(4) The alien has been charged and found to be deportable or removable
on the basis of a crime that is an aggravated felony, as defined in section
101(a)(43) of the Act (as in effect at the time the application for section
212(c) relief is adjudicated), except as follows:
(i) An alien whose convictions for one or more aggravated felonies
were 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
65
Id., at 24.
Executive Office for Immigration Review; Section 212(c) Relief for Aliens With Certain
Criminal Convictions Before April 1, 1997, 69 Fed. Reg. 57826, 57832 (2004). Blake also speaks
of noncitizens being ineligible for § 212(c) if they did not meet the comparable analysis test.
Matter of Blake, 32 I. & N. Dec., at 722 (“. . . the respondent is therefore ineligible for a section
212(c) waiver . . .”).
67
Cf. Succar v. Ashcroft, 394 F.3d at 24-26.
66
12
if he or she has served a term of imprisonment of five years or more for
such aggravated felony or felonies, and
(ii) An alien is not ineligible for section 212(c) relief on account of an
aggravated felony conviction entered pursuant to a plea agreement that
was made before November 29, 1990; or
(5) The alien 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.
8 C.F.R. 1212.3(f) (emphasis added).
When the meaning of regulatory language is ambiguous, the agency’s
interpretation of the regulation controls only “so long as it is ‘reasonable,’ that is, so long
as the interpretation sensibly conforms to the purpose and wording of the regulations.”68
An agency interpretation that is inconsistent with the regulation should be overturned.69
There is no “aggravated felony” ground of inadmissibility. On its face, then, no
aggravated felony offense can be waived if 8 C.F.R. § 1212.3(f)(5) is strictly construed.
This subsection, then, would appear to be directly contradictory to 8 C.F.R. §
1212.3(f)(4). Statutory construction requires that two arguably contradictory statutes
should be interpreted in a way that solves the apparent inconsistency.70
Statutory construction also requires that in interpreting a statute or regulation, one
must "avoid any statutory interpretation that renders any [other] section superfluous and
does not give effect to all of the words used . . . ."71 As interpreted by Blake, 8 C.F.R. §
1212.3(f)(5) often prevents the language immediately preceding in 8 C.F.R. §
1212.3(f)(4) from being given full effect (i.e. in those cases involving non-drug
aggravated felonies), and where the language is not given full effect, renders that
language superfluous.
Additionally, a specific provision must prevail over a general one.72 Here the
provisions of 8 C.F.R. § 1212.3(f)(4) relate explicitly to aggravated felonies, whereas the
language of 8 C.F.R. § 1212.3(f)(5) vaguely requires a “statutory counterpart” under the
Martin v Occupational Safety & Health Review Comm’n, 499 U.S. 144, 150-51 (1991)
(internal citations and quotations omitted).
69
See, e.g., Udall v Tallman, 380 U.S. 1, 85 S.Ct. 792, rehearing denied, 380 U.S. 989 (1965)
(rejecting an agency’s interpretation of its own regulation that was inconsistent with the
regulation).
70
Hughes Air Corp. v. Public Util. Comm'n, 644 F.2d 1334, 1338 (9th Cir.1981) (basic rule of
statutory construction "that one provision should not be interpreted in a way which is internally
contradictory or that renders other provisions of the same statute inconsistent or meaningless.").
71
Central Mont. Elec. Power Co-op., Inc. v. Administrator, Bonneville Power Admin., 840 F.2d
1472, 1478 (9th Cir.1988).
72
See, e.g., See Guidry v Sheet Metal Workers National “Pension Fund, 493 U.S. 365, 375
(1990) (citation omitted) (“It is an elementary tenet of statutory onstruction that where there is no
clear indication otherwise, a specific statute will not be controlled or nullified by a general one.”).
68
13
grounds of inadmissibility. The general language of 8 C.F.R. § 1212.3(f)(5) should not
be interpreted as rendering void the more specific language of 8 C.F.R. § 1212.3(f)(4).73
The provisions of 8 C.F.R. §§ 1212.3(f)(4) and (f)(5) easily can be interpreted as
consistent with each other by reasoning that the aggravated felony ground of removal can
have a “statutory counterpart” under the controlled substance, crime involving moral
turpitude, or other relevant ground – as the BIA and courts have held for more than a
decade.
8.
Blake and the Regulation Violate Equal Protection under Francis.
In Francis v. INS,74 the Second Circuit found that equal protection and due
process were violated by denying a permanent resident in deportation proceedings the
opportunity to apply for § 212(c) relief for a drug conviction, simply on the basis that he
was not in exclusion proceedings. The fact that Mr. Francis had not temporarily left the
country -- thereby subjecting himself to the grounds of excludability, for which §212(c)
relief was available -- was an “irrelevant and fortuitous factor” that could not rationally
justify distinguishing between permanent residents charged with inadmissibility, and
those charged with deportability.75 Therefore, the court required that §212(c) relief be
made available to any qualifying permanent resident, regardless of whether or not she has
departed the United States, as long as if the person were to depart she would be eligible to
apply for §212(c) to waive a ground of inadmissibility upon her return.76 This rule and
its constitutional basis were universally accepted by the BIA77 and courts of appeal.78
See, e.g., Nat’l Ass’n of Mfrs. V United States DOI, 134 F.3d 1095, 1108 (D.C.Dir. 1998) (“As
we have repeatedly counseled, an interpretation, which essentially deprives one provision of its
meaning and effect so that another regulation can be read as broadly as its language will permit, is
inconsistent with the Congress’s intent as well as our Chevron analysis); Halverston v Slater, 129
F.3d 180, 185 (D.C. Cir. 1997) (rejecting agency interpretation of its general delegation provision
because the interpretation would render the more specific and directly applicable delegation
provision meaningless).
74
Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976).
75
“Fundamental fairness dictates that permanent resident aliens who are in like circumstances,
but for irrelevant and fortuitous factors, be treated in a like manner. We do not dispute the power
of the Congress to create different standards of admission and deportation for different groups of
aliens. However, once those choices are made, individuals within a particular group may not be
subjected to disparate treatment on criteria wholly unrelated to any legitimate governmental
interest. We find that the Board's interpretation of Section 212(c) is unconstitutional as applied to
this petitioner.” Francis v. INS, 532 F.2d at 273.
76
Id.
77
Matter of Silva, 16 I&N Dec. 26 (BIA 1976).
78
See, e.g., De Gonzalez v. INS, 996 F.2d 804, 806 (6th Cir. 1993); Variamparambil v. INS, 831
F.2d 1362, 1364 n.1 (7th Cir. 1987); Tapia-Acuna v. INS, 640 F.2d 223, 224 (9th Cir. 1981);
Casalena v. INS, 984 F.2d 105, 106 n.3 (4th Cir. 1993) (citing, inter alia, Chiravacharadhikul v.
INS, 645 F.2d 248, 248 n.1 (4th Cir.), cert. denied, 454 U.S. 893 (1981)); Ghassan v. INS, 972
F.2d 631, 633 n.2 (5th Cir. 1992) (citing, inter alia, Ashby v. INS, 961 F.2d 555, 557 n.2 (5th Cir.
1992); Mantell v. INS, 798 F.2d 124, 125 (5th Cir. 1986)), cert. denied, 113 S. Ct. 1412 (1993);
Campos, 961 F.2d at 313 (citing Joseph v. INS, 909 F.2d 605, 606 n.1 (1st Cir. 1990); Lozada v.
73
14
The BIA now is repeating the Francis error. The BIA acknowledges that an
applicant such as Mr. Blake would be eligible to apply to waive an aggravated felony that
also causes inadmissibility, despite the lack of a “comparable ground,” if he were to leave
the country and seek readmission.79 This is the same “irrelevant and fortuitous factor”
that was held unconstitutional under the Francis doctrine. Mr. Blake also would have
been able to apply for §212(c) relief if, like the respondent in Matter of Azurin, he
happened to be eligible to apply for adjustment of status, because it is considered the
equivalent of seeking admission.80
Matter of Blake violates Francis, since it treats permanent residents differently
based entirely upon whether or not they have left the country and are seeking admission
(or are applying for adjustment, the equivalent of seeking admission81). Blake is also
misleading to the extent that it cites firearms cases as if they were support for the
proposition that a comparable ground is required for aggravated felonies. In Cabasug v
INS,82 for example, Mr. Cabasug was deportable for possessing a firearm but not
inadmissible under any ground, including moral turpitude. His case lost under a straight
Francis analysis: even if he had been applying for admission, he had no basis to apply for
§212(c).83 At that time, in fact, the firearms ground only penalized possession of certain
weapons and by definition could not constitute a crime involving moral turpitude.84
Likewise, Cato v. INS, upon which Blake particularly relied, involved conviction of a
INS, 857 F.2d 10, 11 n.1 (1st Cir. 1988)); Vissian v. INS 548 F.2d 325, 328 n.3 (10th Cir. 1977);
citations provided at Bedoya-Valencia v. INS, 6 F.3d 891, 895 (2d Cir. 1993).
79
Matter of Azurin, supra, at 696-7, finding that 8 C.F.R. § 1212.3(f)(5), which requires a
comparable ground only for a deportable or removable alien, does not apply to an alien seeking
admission or its equivalent.
80
Id.
81
For purposes of applying for a waiver of inadmissibility, the following are considered
equivalent to an application for admission (or, formerly, entry): an application for adjustment of
status, and a nunc pro tunc application in deportation or removal proceedings to waive
inadmissibility from a prior admission. See, e.g., Matter of Millard, 11 I&N 175 (BIA 1975) (§
212(h) application at the border without an adjustment application); Matter of Rainford, supra,
Matter of Gabryelsky, supra, and Matter of Azurin, supra (§ 212(c) application in conjunction
with adjustment as a defense to deportation or removal); Matter of Parodi, 17 I&N 608 (BIA
1980) (§212(h) nunc pro tunc application).
82
Cabasug v INS, 847 F.3d 1321 (9th Cir. 1988).
83
While the opinion includes language that can be read as supporting a comparable grounds
analysis, the court really applies the Francis test. “By contrast with narcotics and marijuana
cases, there exists no class of persons alike in carrying sawed-off shotguns or machine guns, and
deportable or not depending on the irrelevant circumstance of whether at some previous time
they took a temporary trip out of the country. The gravamen of the equal protection violation
identified in Francis was just such a distinction without a material difference. In the treatment of
these weapons offenses, Congress has legislated no such distinction, nor has any administrative
practice created one.” Id. at 1326 (emphasis added). See also discussion of Francis in the
concurrence. At the very least, the court was not directly presented with the issue of whether a
firearms conviction that also caused inadmissibility was amenable to § 212(c) treatment.
84
See former INA §241(a)(14) (possession of a sawed-off shotgun or machine gun).
15
firearms offense that was neither an aggravated felony nor crime involving moral
turpitude.85
The point is not so much that we may come back to win in cases where a firearms
offense also involves moral turpitude – although that argument could be made – but that
some circuits have not had to specifically rule on the comparable grounds analysis, much
less comparable grounds as applied to aggravated felonies. Counsel should distinguish
the situation of aggravated felonies and firearms, based on the language in §212(c)
regarding aggravated felonies and five years incarcerated, as well as on the statutory and
legislative history of firearms, which is different from aggravated felonies.
Allowing a drug-kingpin sentenced to four years in prison to apply for § 212(c)
relief to avoid deportation, while barring noncitizens convicted of petty-theft, sentenced
to a 365 days suspended sentence, also violates equal protection because there is no
rational basis to allow potentially serious drug offenders to apply for § 212(c) relief,
while barring more minor offenders.86 In Cordes v Gonzalez,87 the Ninth Circuit recently
held that, where a noncitizen was convicted between AEDPA and IIRAIRA of an offense
that did not become deportable until IIRAIRA made the offense an aggravated felony,
and therefore would not technically be eligible to apply for § 212(c) relief because the
noncitizen could not have relied upon the availability of such relief as required by St.
Cyr,88 the noncitizen should still be allowed to apply for § 212(c), since to deny this
opportunity would violate equal protection. Relying on Francis and Tapia-Acuna,89 the
court found that the mere fact that Ms. Cordes was not rendered deportable at the time of
the conviction was an “irrelevant and fortuitous” distinction, “since Cordes quite
obviously faces deportation now.”90 The court further found that:
[T]he disparate treatment of Cordes and those permanent residents who
are entitled to section 212(c) relief under St. Cyr lacks a rational basis.
Because Cordes does not fit within the St. Cyr exception, the law treats her
differently than those permanent resident aliens who formed settled
expectations as to the availability of section 212(c) relief because they
committed severe, deportable offenses. Had Cordes committed a more
severe crime--one that would have rendered her deportable--she would
have been eligible for such relief and been able to preserve the relief even
though her crime was later reclassified as an aggravated felony.91
The BIA states that its new rule “is consistent with the test for comparable grounds applied by
the United States Court of Appeals for the Second Circuit …. in Cato v. INS, 84 F.3d 597, 600
(2d Cir. 1996).” Blake, at 728-29.
86
Arguably this point is even stronger when the non-drug aggravated felony is not even a crime
of moral turpitude.
87
Cordes v. Gonzalez, 421 F.3d 889 (9th Cir. 2005).
88
See United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002).
89
Tapia-Acuna v. INS, 640 F.2d 223, 224 (9th Cir. 1981).
90
Cordes v. Gonzalez, 421 F.3d at 897.
91
Ibid. Note that Cordes also distinguished the application of § 212(c) relief in this case from the
similar line of § 212(h) cases, including Tanigushi v. Schultz, 303 F.3d 950 (9th Cir. 2002)
85
16
That this same discrepancy exists in treating “aggravated misdemeanor”92 offenders
differently then potentially serious drug offenders also points out the illogic and
irrationality of Blake.
C. Working within Blake: Find a comparable ground of Inadmissibility
Counsel can in some cases argue that the aggravated felony category at issue does
have a comparable ground of inadmissibility. In making this argument, counsel would
look at the grounds themselves, not at the underlying offense. “The essential analysis is
to determine whether the deportation ground under which the alien has been adjudged
deportable has a statutory counterpart among the exclusion grounds waivable by section
212(c).”93 This may be a tough sell, depending on how closely and comprehensively the
categories match each other. The deportation grounds and exclusion grounds must be
“analogous,”94 “substantially identical,”95 “comparable,”96 or “equivalent.”97 Grounds
are not analogous if one of them has a “vastly greater scope” than the other, even though
the wider ground may include the narrower ground.98
Certain grounds of inadmissibility are, to different degrees, analogous to specific
aggravated felony categories. It is accepted that the controlled substance trafficking
aggravated felony category is sufficiently close to the controlled substance ground of
inadmissibility to permit waiver.99 Counsel can argue that the same should be held for
alien smuggling,100 money laundering,101 prostitution,102 espionage and sabotage,103
(“Congress had a rational basis for denying a discretionary waiver to aggravated felons who were
permanent residents”), because the § 212(c) issue is not based on the separation between lawful
permanent residents and non-lawful permanent residents.
92
Joseph Justin Rollin, HUMPTY DUMPTY LOGIC: ARGUING AGAINST THE "AGGRAVATED
MISDEMEANOR" IN IMMIGRATION LAW, 6 Bender's Immigr. Bull. 443, 445 (May 15, 2001).
93
Matter of Jimenez-Santillano, 21 I&N Dec. 567, 574 (BIA 1996) (INA § 241(a)(3)(B)(iii),
criminal conviction for document fraud or misuse under 18 U.S.C. § 1546, encompasses much
more conduct than that under INA § 212(a)(6)(C)(i), fraud or willful misrepresentation of a
material fact before an immigration official to procure an immigration benefit, so the two grounds
are not analogous).
94
Matter of Wadud, 19 I&N Dec. 182, 185 (BIA 1984).
95
Cabasug v. INS, 847 F.2d 1321, 1326 (9th Cir. 1988).
96
Matter of Montenegro, 20 I&N 602, 603 (BIA 1992).
97
Matter of Hernandez-Casillas, 20 I&N Dec. 262, 287 (BIA 1990; A.G. 1991), aff’d, 983 F.2d
231 (5th Cir. 1993).
98
Matter of Jimenez-Santillano, supra.
99
INA § 212(a)(2)(A)(i)(II); INA § 101(a)(43)(B). See Matter of Meza, supra; INS v. St. Cyr,
supra.
100
Compare INA § 212(d)(11), with INA § 101(a)(43)(N).
101
Compare INA § 212(a)(2)(I), with INA § 101(a)(43)(D).
102
Compare INA § 212(a)(2)(D), with INA § 101(a)(43)(K).
103
Compare INA § 212(a)(3)(A)(i), with INA § 101(a)(43)(L).
17
illegal reentry104 and passport fraud.105 Some additional possibilities include trafficking
in firearms or vehicles, as it relates to export violations,106 kidnapping as it relates to
children,107 forgery or counterfeiting as it relates to immigration documents,108 and
conceivably tax evasion.109
104
Compare INA § 212(a)(9)(A)(i), with 101(a)(43)(O). The Second Circuit has upheld this,
while the BIA and other circuits have disallowed it. Compare Bedoya-Valencia v. INS, 6 F.3d
891, 897 (2d Cir. 1993) to Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G.
1991) (212(c) (cannot waive entry without inspection), aff’d, 983 F.2d 231 (5th Cir. 1993).
105
Compare INA § 212(d)(2), with 101(a)(43)(P).
106
Compare INA § 212(a)(3)(A)(i)(II), with 1101(a)(43)(C), (R).
107
Compare INA § 212(a)(10)(C)(iii), with INA § 101(a)(43)(H).
108
Compare INA § 212(d)(2), with INA § 101(a)(43)(R).
109
Compare INA § 212(a)(10)(E), with INA § 101(a)(43)(M)(ii) (although the inadmissibility
ground only covers former citizens who renounce citizenship to avoid taxation).
18