The Board of Immigration Appeals finally has declared surrender on the issue of 212(c) relief after decades of litigation. With its decision in this case, it has adopted the position urged by the amicus curiae brief of the American Immigration Lawyers Association to return to its position in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990), before the Attorney General overruled it.
The Board held 212(c) is available to waive all grounds of deportability except those comparable to the grounds of excludability (inadmissibility) excluded from 212(c) by its text (relating to terrorists, saboteurs, and war criminals). 212(c) thus is available to waive even convictions that would not make an immigrant inadmissible for a crime involving moral turpitude or controlled substance offense. It found this was the only option offered by the parties and amici that would fulfill the Supreme Court's mandate in Judulang to avoid mechanical distinctions in 212(c) eligibility criteria that do not rationally relate to an immigrant's fitness to remain in the U.S.
The Board further held that proof of reliance on the possibility of 212(c) relief was not necessary to establish eligibility and that 212(c) was available to immigrants convicted after trial, not just pursuant to a plea. This was not necessary to resolve Abdelghany's case, but the Board nonetheless seems to have wanted to settle all of the 212(c) issues once and for all. Moreover, the conclusion was all but compelled by the Supreme Court's retroactivity holding on the continued vitality of the Fleuti exception in Vartelas.
Likewise, the Board held that 212(c) eligibility also does not hinge on whether the conviction actually made the immigrant deportable at the time of the conviction. Again, the focus is on whether a new law imposes a disability on a past action, not on whether there was reliance--as Vartelas teaches. The Board buttressed that conclusion by quoting the double bulwark language of United States v. Leon-Paz, 340 F.3d 1003, 1006−07 (9th Cir. 2003). The Ninth Circuit held Leon-Paz “had two bulwarks to protect himself against attacks on his residence in this country.” "The first was the fact that he had pled to a crime that was below the aggravated felony threshold, and the second was § 212(c) itself in case the definition of aggravated felony changed as it often had and has.”
Nonetheless, some limitations on 212(c) relief remain related to the statutory history. An immigrant is not eligible if: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.