ABDELGHANY, 26 I. & N. Dec. 254

Background

Respondent: Egyptian national, became lawful permanent resident in 1987; convicted in 1995 (guilty plea) of conspiracy to commit arson (18 U.S.C. §§ 371, 844(i)); sentenced to 24 months later reduced to 6 months.
DHS commenced removal in 2010 asserting the 1995 conviction is an "aggravated felony," rendering respondent removable under the INA.
Respondent applied for discretionary relief under former INA § 212(c); Immigration Judge denied eligibility based on the Board’s prior “statutory counterpart” rule (8 C.F.R. § 1212.3(f)(5)).
After the appeal was filed, the Supreme Court decided Judulang v. Holder invalidating the Board’s prior application of the statutory-counterpart rule as arbitrary, and the Board solicited supplemental briefing to adopt a new eligibility test.
Board concluded that otherwise qualifying lawful permanent residents with 7+ years of lawful unrelinquished domicile may seek § 212(c) relief for convictions entered before April 1, 1997, subject to specific exceptions (terrorism-related inadmissibility, 5-year aggregate imprisonment for certain aggravated felonies, and AEDPA/IIRIRA temporal limits).
Applying the new test, the Board held respondent eligible for § 212(c) relief and remanded for discretionary consideration.

Issues

Issue	Respondent's Argument	DHS/Amici Argument	Held
Whether the Board should continue applying the “statutory counterpart” rule to deny § 212(c) eligibility	The statutory-counterpart rule was misapplied and, per Judulang, arbitrary; respondent should be eligible	DHS argued narrower tests (e.g., require deportability/excludability at time of conviction) or retain strict textual limits	The Board rejected the statutory-counterpart rule and adopted a broader Hernandez-Casillas–style approach consistent with Judulang, allowing waiver of any deportability ground except specified exclusions
Temporal retroactivity: which convictions (by date/plea vs trial) permit § 212(c) applications	Respondent: pre‑April 24, 1996 convictions (including pleas) make applicant eligible; plea/trial distinction should not block relief	DHS urged limiting eligibility to those deportable/excludable at conviction or to plea-based convictions only	The Board held convictions entered before April 24, 1996 permit eligibility without requiring proof of reliance or plea; convictions April 24, 1996–April 1, 1997 are governed by AEDPA §440(d) restrictions; convictions on/after April 1, 1997 are barred
Whether a plea/trial distinction is required for retroactivity/eligibility under St. Cyr and Vartelas	Respondent: plea/trial distinction should not limit eligibility; St. Cyr protects plea cases but retroactivity inquiry extends to convictions generally	DHS favored treating trial convictions less favorably, relying on retroactivity/ reliance arguments	The Board concluded post‑Vartelas there is no reliance requirement; both plea and trial convictions before April 24, 1996 are treated the same for eligibility purposes
Proper scope of exclusions to § 212(c) availability (e.g., terrorism, long aggregate sentences)	Respondent: exclusions should be limited to those statutorily specified	DHS/amici: urge strict exclusions and narrower eligibility to protect public safety	The Board limited eligibility only by statutory inadmissibility grounds (INA §§212(a)(3)(A),(B),(C),(E), (10)(C)) and by the IMMACT 90 5‑year aggregate imprisonment bar and AEDPA temporal constraints

Key Cases Cited

INS v. St. Cyr, 533 U.S. 289 (preservation of § 212(c) relief for eligible plea cases)
Judulang v. Holder, 132 S. Ct. 476 (invalidating arbitrary statutory‑counterpart application; eligibility distinctions must relate to fitness to remain)
Vartelas v. Holder, 132 S. Ct. 1479 (presumption against retroactivity does not require proof of detrimental reliance)
Landgraf v. USI Film Prods., 511 U.S. 244 (principles governing retroactive application of statutes)
Moncrieffe v. Holder, 133 S. Ct. 1678 (discretionary relief and consideration of equities)