Matter of Ezzat H. ABDELGHANY, Respondent
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
February 28, 2014
26 I&N Dec. 254 (BIA 2014)
Interim Decision #3796
(2) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under former section 212(c) of the Act unless: (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.
(3) A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.
FOR RESPONDENT: Mumtaz A. Wani, Esquire, Falls Church, Virginia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Justin M. Leone, Assistant Chief Counsel
AMICI CURIAE: American Immigration Lawyers Association;1 Federation for American Immigration Reform2
WENDTLAND, Board Member:
In a decision dated June 23, 2011, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
During the pendency of the appeal, the Supreme Court decided Judulang v. Holder, 132 S. Ct. 476 (2011). That decision invalidated our precedents applying the statutory counterpart rule as “arbitrary and capricious,” leaving it to us to “devise another, equally economical policy respecting eligibility for § 212(c) relief.” Id. at 490. In light of Judulang, we solicited supplemental briefs in which we asked the parties and amici curiae to provide us with their views as to what test we should adopt for evaluating the respondent’s eligibility for section 212(c) relief.3
We now conclude that, with a few significant exceptions, a lawful permanent resident of the United States who has accrued 7 consecutive years of lawful unrelinquished domicile in this country is eligible to apply for section 212(c) relief in removal proceedings if he or she is removable by virtue of a plea or conviction entered before April 1, 1997. Applying this test, we conclude that the respondent is eligible to apply for a section 212(c) waiver. Accordingly, the respondent’s appeal will be sustained and the record will be remanded for further proceedings.
The relevant facts are undisputed. The respondent is a native and citizen of Egypt who was admitted to the United States as a nonimmigrant in 1986 and became a lawful permanent resident in 1987. In 1995, pursuant to a guilty plea, the respondent was convicted of conspiracy to commit arson in violation of
In July 2010 the Department of Homeland Security (“DHS”) initiated these removal proceedings, alleging that the respondent’s 1995 conviction renders him removable from the United States as an alien convicted of an “aggravated felony,” as that term is defined by sections 101(a)(43)(E)(i) and (U) of the Act.5 The Immigration Judge sustained that charge, which is not disputed, and denied the respondent’s request for a section 212(c) waiver, the only form of relief for which he applied. As noted previously, the Immigration Judge found the respondent ineligible for such relief based solely on the interpretation in Board precedents of the “statutory counterpart” rule, which was later invalidated by the Judulang Court.
II. LEGAL BACKGROUND
Since the evolution of section 212(c) relief has been described elsewhere, most notably in the Supreme Court’s decision in Judulang, we need not repeat its full history here. Instead, we provide the following abridged account.
A. Amendment and Repeal of Section 212(c): INS v. St. Cyr
Between 1952 and 1990, section 212(c) of the Act provided in relevant part that
[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to [their excludability under section 212(a) of the Act].
In 1996, that prohibition was expanded to cover all lawful permanent residents who were “deportable” based on convictions for a broad set of offenses, including aggravated felonies, drug convictions, firearm offenses, and certain convictions for crimes involving moral turpitude. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (effective Apr. 24, 1996) (“AEDPA”). Finally, less than 1 year after AEDPA went into effect, Congress repealed section 212(c) in its entirety. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-546, 3009-597 (effective Apr. 1, 1997) (“IIRIRA”).6
The foregoing amendments—which first limited and then repealed section 212(c)—prompted a great deal of administrative litigation, primarily concerned with defining the amendments’ proper temporal scope. That litigation culminated in Matter of Soriano, 21 I&N Dec. 516, 533−40 (BIA 1996; A.G. 1997), in which the Attorney General determined that applying section 440(d) of the AEDPA to foreclose applications for section 212(c) relief that were pending on AEDPA’s effective date had no impermissible retroactive effect. In 2001, however, the Supreme Court held that in view of the presumption against statutory retroactivity, “§ 212(c) relief remains available for aliens . . . whose convictions were obtained through plea agreements 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).
Various issues relating to the availability of section 212(c) relief nevertheless remained. The text of section 212(c) has always been framed in terms of the “admission” of lawful permanent residents who are returning to the United States after traveling abroad. In the 1970s, however, judicial and administrative determinations relying on constitutional considerations resulted in the extension of section 212(c) relief to many lawful permanent residents who had never left the United States—and thus were not seeking “admission,” either currently or nunc pro tunc—and who were “deportable” based on conduct similar to that described in the grounds of exclusion at section 212(a) of the Act. See, e.g., Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I&N Dec. 26 (BIA 1976).7
The expansion of section 212(c) beyond its text has presented difficult line-drawing problems for the Board over the years. See Judulang v. Holder, 132 S. Ct. at 488−89. In the wake of St. Cyr, however, the Attorney General declared by means of a regulation that section 212(c) relief was unavailable to any lawful permanent resident who was deportable or removable “on a ground which does not have a statutory counterpart in section 212 of the Act.”
As discussed, the Judulang Court invalidated as “arbitrary and capricious” the understanding of the statutory counterpart rule embodied in Brieva and Blake, but it did not preclude us from fashioning an alternative rule, “so long as it comports with everything held in both this decision and St. Cyr.” Judulang v. Holder, 132 S. Ct. at 490. Our initial task, then, is to determine what Judulang and St. Cyr require.
A guiding principle underlying St. Cyr is that Congress did not express a clear intention that the AEDPA and IIRIRA amendments relating to section 212(c) would operate in a manner that would have a “retroactive effect.” Thus, denying section 212(c) relief to a lawful permanent resident on the basis of those amendments is impermissible if such denial “attaches a new disability, in respect to transactions or considerations already past.” INS v. St. Cyr, 533 U.S. at 321 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 269 (1994)) (internal quotation mark omitted). In the wake of St. Cyr, the Supreme Court has also clarified that an alien challenging the allegedly retroactive application of an amendment to the Act is not required to prove that he actually relied on prior law when structuring his conduct. Vartelas v. Holder, 132 S. Ct. 1479, 1490−91 (2012).
The fundamental lesson of Judulang is that a deportable lawful permanent resident cannot be declared ineligible for section 212(c) relief on the basis of mechanical distinctions arising from the structure of the immigration statute. Instead, any distinction drawn between two different classes of removable lawful permanent residents “must be tied, even if loosely, to the purposes of the immigration laws or the appropriate operation of the immigration system.” Judulang v. Holder, 132 S. Ct. at 485. Ultimately, this means that any approach to section 212(c) eligibility that places one removable lawful permanent resident in a less advantageous position than another must embody a rational judgment regarding the individuals’ relative “fitness to remain in the country.” Id.
III. ANALYSIS
After St. Cyr and Judulang, the basic question remains: which deportable lawful permanent residents may apply for section 212(c) relief?
In all its various iterations, the statutory language of section 212(c) has limited the availability of relief to individuals who are “aliens lawfully admitted for permanent residence” who have accrued at least 7 consecutive years of “lawful unrelinquished domicile” in the United States. Section 212(c) of the Act. Those requirements remain in effect. See
Following the IMMACT 90 amendments, section 212(c) relief also remains unavailable to the class of individuals who were convicted of one or more aggravated felonies between November 29, 1990, and April 24, 1996, and who have served for such felony or felonies an aggregate term of imprisonment of at least 5 years. See, e.g., Lawrence v. Holder, 717 F.3d 1036, 1039−41 (9th Cir. 2013); Lupera-Espinoza v. Att’y Gen. of U.S., 716 F.3d 781, 786−88 (3d Cir. 2013); Perriello v. Napolitano, 579 F.3d 135, 142−43 (2d Cir. 2009); Fernandes Pereira v. Gonzales, 417 F.3d 38, 44−46 (1st Cir. 2005).10 Further, section 440(d) of the AEDPA requires that section 212(c) relief be denied to anyone whose plea or conviction was entered between April 24, 1996, and April 1, 1997, and “who is deportable by reason of having committed any criminal offense covered in section 237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 237(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 237(a)(2)(A)(i).” See, e.g., Moreno-Bravo v. Gonzales, 463 F.3d 253, 264 (2d Cir. 2006). See generally Matter of Fortiz, 21 I&N Dec. 1199 (BIA 1998).11 Finally,
Matter of Longstaff, 716 F.2d 1439, 1441−42 (5th Cir. 1983); cf. Matter of Koloamatangi, 23 I&N Dec. 548, 549−51 (BIA 2003) (addressing cancellation of removal).
In seeking to establish eligibility criteria for lawful permanent residents who are not subject to the foregoing limitations, we are guided by the lessons of Judulang and St. Cyr. That is, we must avoid standards that arbitrarily exclude people from eligibility for relief without regard to their relative “fitness to remain in the United States” while also taking care to avoid applying the AEDPA or IIRIRA amendments in a manner that would have an impermissible retroactive effect. Judulang v. Holder, 132 S. Ct. at 485. Our present task is to determine how these lessons should be implemented in actual cases.
A. “Fitness To Remain in the United States”
In response to our supplemental briefing request, the parties and amici have proposed several competing standards for identifying those deportable lawful permanent residents whom we should deem “fit[] to remain in the United States” as applicants for section 212(c) relief. Id. We address the merits of each proposed standard in turn.
1. Blake v. Carbone Approach
In his supplemental brief, the respondent urges us to adopt the approach embodied in Blake v. Carbone, 489 F.3d 88, 101−03 (2d Cir. 2007), in which the United States Court of Appeals for the Second Circuit held that section 212(c) relief is available to an otherwise eligible applicant if his conviction would render a similarly situated person inadmissible under section 212(a) of the Act, irrespective of whether the pertinent inadmissibility ground is precisely a “counterpart” of or “comparable” to the deportability ground under which the applicant is charged. Because of the categories specified under the criminal grounds of removability, this approach often requires a deportable lawful permanent resident to show that his offense is covered by section 212(a)(2)(A)(i)(I) of the Act, the inadmissibility ground that pertains to a crime (or crimes) involving moral turpitude.
entered on or after April 1, 1997. See, e.g., Pascua v. Holder, 641 F.3d 316 (9th Cir. 2011). Further still, the AEDPA amendments do not apply to aliens in pre-IIRIRA exclusion proceedings. See Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997).
The Blake v. Carbone approach has some of the same mechanical features as the statutory counterpart rule, placing deportable lawful permanent residents in the position of having to squeeze their deportable offenses into often ill-fitting grounds of inadmissibility. As a result, application of this approach can lead to the denial of relief for reasons that turn on the structure of the immigration law but that do not relate to the applicant’s objective “fitness” to remain in the United States. A few brief examples serve to illustrate the point.
Some convictions for a crime involving moral turpitude that render aliens deportable do not render them inadmissible because of the “petty offense exception” in section 212(a)(2)(A)(ii)(II) of the Act. See Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). Under a faithful reading of Blake v. Carbone, some lawful permanent residents who are deportable for such convictions would thus be ineligible for section 212(c) relief solely because their crimes are too minor to render a similarly situated alien inadmissible.
Likewise, lawful permanent residents who are deportable under section 237(a)(2)(C) of the Act on the basis of relatively minor convictions for firearms possession would be ineligible for a section 212(c) waiver under the Second Circuit’s test because such crimes are not turpitudinous. See Matter of Granados, 16 I&N Dec. 726 (BIA 1979) (holding that carrying a concealed firearm is not a crime involving moral turpitude), aff’d, 624 F.2d 191 (9th Cir. 1980). But lawful permanent residents who actually use firearms to inflict or threaten harm to victims would be eligible for relief because the violent character of their crimes would serve to “elevate” them to the level of crimes involving moral turpitude. See Matter of Medina, 15 I&N Dec. 611 (BIA 1976) (holding that assault with a deadly weapon is a crime involving moral turpitude), aff’d, 547 F.2d 1171 (7th Cir. 1977).
Moreover, some lawful permanent residents are deportable based on convictions for aggravated felony “theft offenses” that would not render similarly situated aliens inadmissible for crimes involving moral turpitude
It would be incongruous to exclude a deportable lawful permanent resident from eligibility for relief on the ground that his crime is not serious or turpitudinous enough to render a similarly situated alien inadmissible. Indeed, an approach to section 212(c) eligibility that would exclude only the least culpable offenders from relief cannot be said to have a rational connection to the goals or purposes of the immigration system. See Judulang v. Holder, 132 S. Ct. at 485 (“[T]he BIA’s approach must be tied, even if loosely, to the purposes of the immigration laws or the appropriate operation of the immigration system.”).
2. Abebe v. Mukasey Approach
In its amicus brief, the Federation for American Immigration Reform (“FAIR”) expresses the view that the Supreme Court’s decision in Judulang militates in favor of a strict textual interpretation of section 212(c). FAIR thus supports a “clean slate” approach similar to that adopted by the Ninth Circuit in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc) (per curiam), which held that the Constitution does not require that section 212(c) relief be made available to any deportable lawful permanent residents. There are several insurmountable obstacles to our adoption of the Abebe approach.
First, as we noted in Matter of Moreno-Escobosa, 25 I&N Dec. 114 (BIA 2009), the Attorney General has promulgated a regulation that authorizes many deportable lawful permanent residents to seek section 212(c) waivers.
FAIR maintains that Judulang has undermined the rationale of Moreno-Escobosa by casting doubt on the validity of
Our reluctance to adopt the Abebe approach is “further influenced by the presumption that the Federal immigration laws are intended to have uniform nationwide application and to implement a unitary Federal policy.” Matter of Velazquez-Herrera, 24 I&N Dec. 503, 508 (BIA 2008). We would face an obstacle to adopting the Abebe approach as a nationwide administrative rule, even if the regulations permitted us to, because that approach may well conflict with the Second Circuit’s constitutional rulings in Blake v. Carbone and Francis v. INS. Because the Second Circuit has already held that denial of section 212(c) relief would pose serious constitutional problems for deportable lawful permanent residents whose offenses are encompassed by the grounds of inadmissibility, we arguably are not free to adopt FAIR’s proposed interpretation in Second Circuit cases. Cf. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575−78 (1988) (holding that the imperative of constitutional avoidance trumps traditional principles of administrative deference).
Finally, declaring virtually all deportable lawful permanent residents ineligible for section 212(c) relief would constitute an abrupt departure from more than 30 years of established practice and would prejudicially upset the reasonable expectations of a great many individuals. See SEC v. Chenery Corp., 332 U.S. 194, 203 (1947); ARA Servs., Inc. v. NLRB, 71 F.3d 129, 135−36 & n.3 (4th Cir. 1995); Retail, Wholesale and Dep’t Store Union, AFL-CIO v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972).
3. Hernandez-Casillas Approach
The American Immigration Lawyers Association (“AILA”) urges us to adopt an approach similar to that we espoused in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991). In that 1990 case, we broadened the availability of section 212(c) relief by making it “applicable to all grounds of deportability with the exception of those comparable to the exclusion grounds expressly excluded by section 212(c) [such as those relating to terrorists, saboteurs, and war criminals], rather than limiting it, as now, to grounds of deportability having equivalent exclusion provisions.” Id. at 266. That broader approach, we noted, was no less “logical” than limiting section 212(c) relief to aliens covered by grounds of deportability having “equivalent” exclusion provisions and had “the benefit of alleviating potential hardships to sometimes deserving aliens.” Id. However, in 1991, the Attorney General overruled our decision in Hernandez-Casillas in favor of an approach to section 212(c)
4. The Approach We Now Adopt
After careful consideration of intervening developments, we conclude that an approach resembling the one we adopted in Hernandez-Casillas is the only option that allows us to fully implement the Judulang Court’s mandate. Alone among the available alternatives, it places inadmissible and deportable lawful permanent residents on a truly level playing field while disregarding mechanical distinctions that arise from the statutory structure and that bear no relation either to deportable aliens’ fitness to remain in this country or to the overall purposes of the immigration laws. Importantly, moreover, it provides applicants, attorneys, and adjudicators with a straightforward test of eligibility for relief that is far better adapted to the “streamlined” nature of removal proceedings than any of the plausible alternatives.
We recognize that this approach is in tension with the regulatory “statutory counterpart” requirement of
In light of the foregoing, we now hold that otherwise qualified applicants may apply for section 212(c) relief in removal proceedings to waive any ground of deportability, unless 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. See
B. Retroactivity
Our adoption of the foregoing eligibility criteria should eliminate most arbitrary and capricious distinctions between lawful permanent residents, but it is not the end of the story because section 212(c) relief remains available in post-IIRIRA removal proceedings (or in pre-IIRIRA deportation proceedings in which AEDPA would otherwise preclude relief) only where the pertinent lawful permanent resident’s subjection to the AEDPA and IIRIRA amendments would attach a “new disability, in respect to transactions or considerations already past.” INS v. St. Cyr, 533 U.S. at 321 (citation omitted). The following discussion establishes uniform standards for identifying those lawful permanent residents.
1. Plea Versus Trial
The alien in St. Cyr entered a pre-AEDPA guilty plea to an offense that rendered him deportable (but eligible for a section 212(c) waiver) at the time of conviction. Thus it is settled that AEDPA’s restriction of section 212(c) relief and IIRIRA’s subsequent repeal of that section cannot be applied to individuals in that specific posture, most of whom would have had good reason to rely on the availability of a section 212(c) waiver when deciding whether a plea was in their best interest. Consensus becomes more elusive, however, as the reliance-based interests of individual applicants become less obvious.
By its literal terms, the St. Cyr Court’s holding applied only to “aliens . . . whose convictions were obtained through plea agreements 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. at 326 (emphasis added). Noting that “[p]lea agreements involve a quid pro quo between a criminal defendant and the government,” the St. Cyr Court determined that “preserving the possibility of [section 212(c)] relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” Id. at 321, 323.
The Second Circuit, which initially declared section 212(c) relief unavailable to lawful permanent residents with trial-based convictions, subsequently refined its jurisprudence by holding that the retroactivity of the AEDPA and IIRIRA amendments must be assessed case by case where the applicant was convicted after a trial, with the burden being on the applicant to demonstrate that he actually relied on the availability of section 212(c) relief when deciding to go to trial. See Walcott v. Chertoff, 517 F.3d 149, 154−55 (2d Cir. 2008).
The Third, Eighth, and Tenth Circuits have taken a different approach, concluding that the AEDPA and IIRIRA amendments were impermissibly retroactive vis-à-vis aliens who went to trial before April 24, 1996, without regard to subjective reliance. See Lovan v. Holder, 574 F.3d 990, 993−94 (8th Cir. 2009); Hem v. Maurer, 458 F.3d 1185, 1199−1200 (10th Cir. 2006); Ponnapula v. Ashcroft, 373 F.3d 480, 494−96 (3d Cir. 2004). Indeed, the Third Circuit has concluded that the main focus of the retroactivity analysis is not reliance at all but simply whether a statute attaches new legal consequences to past events. The court viewed potential reliance as only one element to consider in ascertaining whether a “new disability” exists. See Atkinson v. Att’y Gen. of U.S., 479 F.3d 222, 227−29 (3d Cir. 2007); see also Olatunji v. Ashcroft, 387 F.3d 383, 388−95 (4th Cir. 2004) (holding, outside the section 212(c) context, that the presumption against statutory retroactivity applies without regard to objective or subjective reliance, and stating that while the presumption against retroactivity serves reliance interests, it does not make reliance a
The Supreme Court has not directly reviewed any of the circuit courts’ decisions addressing the retroactivity of the AEDPA and IIRIRA amendments as applied to lawful permanent residents convicted after trial. However, the Court has issued Vartelas, in which it cited Olatunji and Ponnapula with approval and unequivocally stated that “the presumption against retroactive application of statutes does not require a showing of detrimental reliance.” Vartelas v. Holder, 132 S. Ct. at 1491. The Vartelas Court acknowledged that an objective “likelihood of reliance on prior law strengthens the case for reading a newly enacted law prospectively” but stated that such a likelihood is “not a necessary predicate for invoking the antiretroactivity principle.” Id. (citing Olatunji v. Ashcroft, 387 F.3d at 393).
In the wake of Vartelas, the Fifth and Ninth Circuits have joined the Third, Eighth, and Tenth in holding that lawful permanent residents who sustained trial-based, pre-AEDPA convictions are now eligible to apply for section 212(c) relief whether or not they can show actual subjective reliance on prior law. See Cardenas-Delgado v. Holder, 720 F.3d 1111, 1117−21 (9th Cir. 2013); Carranza-De Salinas v. Holder, 700 F.3d 768, 773−75 (5th Cir. 2012). The Ninth Circuit has stated that after Vartelas it is not necessary to prove any type of reliance in order to demonstrate that a civil statute’s application is impermissibly retroactive. Cardenas-Delgado v. Holder, 720 F.3d at 1119.
Under the circumstances, we are convinced that Supreme Court and emerging circuit court precedent has superseded the regulatory prohibition against granting section 212(c) relief under St. Cyr to aliens convicted after trial. Therefore, Immigration Judges nationwide should now treat deportable lawful permanent residents convicted after trial no differently for purposes of section 212(c) eligibility than deportable lawful permanent residents convicted by means of plea agreements.14 In view of the Vartelas
Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004); Rankine v. Reno, 319 F.3d 93, 100 (2d Cir. 2003); Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002). Because Vartelas has since clarified that no such reliance requirement exists, we consider those decisions superseded by the Supreme Court’s most recent pronouncement.
In Chambers v. Reno, 307 F.3d 284, 292 (4th Cir. 2002), a three-judge panel of the Fourth Circuit left open the possibility that a statute may have an impermissible retroactive effect, even as to those who did not detrimentally rely on prior law. But two judges nonetheless held (over a dissent) that Chambers could not invoke the antiretroactivity presumption because the repeal of section 212(c) did not attach a new legal consequence to his decision to go to trial. Id. at 293. We conclude that the court’s emphasis on Chambers’ strategic decision to go to trial has also been superseded by Vartelas, which made clear that the “essential inquiry” for antiretroactivity purposes is not whether a new law attaches unanticipated consequences to preenactment decisions, but simply “whether the new provision attaches new legal consequences to events completed before its enactment.” Vartelas v. Holder, 132 S. Ct. at 1491 (emphasis added) (quoting Landgraf v. USI Film Products, 511 U.S. at 270) (internal quotation marks omitted). Whether it resulted from a plea or a trial, a conviction entered before April 1, 1997, is an “event completed” before IIRIRA’s effective date.
In its supplemental brief, the DHS argues that the AEDPA and IIRIRA amendments are impermissibly retroactive only with respect to lawful permanent residents whose pre-AEDPA or pre-IIRIRA convictions rendered them both deportable and excludable under the law in effect at the time of conviction. In the DHS’s view, those individuals are the only ones who were entitled to rely on the potential availability of section 212(c) relief in a manner that would give rise to retroactivity concerns. However, we decline to require a showing of deportability at the time of conviction, for three main reasons.
First, such a requirement would necessarily be founded on the premise that a new statute has an impermissible retroactive effect only upon those individuals who relied on prior law. As we just explained, however, the Supreme Court has now determined that a “likelihood of reliance on prior law” is “not a necessary predicate for invoking the antiretroactivity principle.” Vartelas v. Holder, 132 S. Ct. at 1491. Instead, the pertinent question for retroactivity purposes is simply whether the AEDPA and IIRIRA amendments created a new legal disability in respect to preenactment events. For lawful permanent residents who are deportable on the basis of pre-AEDPA convictions, AEDPA and IIRIRA plainly created a new disability, regardless of when the convictions rendered them deportable, by eliminating the prospect of section 212(c) relief. While the prospect of such relief was undoubtedly more contingent for some individuals with pre-AEDPA convictions than for others, this fact is not determinative of the retroactivity question. See An Na Peng v. Holder, 673 F.3d 1248, 1257 (9th Cir. 2012); Ponnapula v. Ashcroft, 373 F.3d at 495−96.
Second, such a requirement cannot be squared with United States v. Leon-Paz, 340 F.3d 1003, 1006−07 (9th Cir. 2003), in which the Ninth Circuit held that the repeal of section 212(c) was impermissibly retroactive vis-à-vis a lawful permanent resident who was convicted in 1995 of an offense that did not render him deportable until 1996, when it was classified an aggravated felony. As the court explained, Leon-Paz “had two bulwarks to protect himself against attacks on his residence in this country” at the time of his conviction: “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.” Id. at 1006. Although the first bulwark was admittedly torn down by IIRIRA’s amendment to the aggravated felony definition (which Congress made explicitly retroactive), the second bulwark remained intact because, as the Supreme Court determined in St. Cyr, Congress had
Third, and finally, requiring an exclusive focus on the law in effect at the time of conviction would be unmanageable in practice. It would require Immigration Judges to engage in an extraordinarily burdensome and imprecise historical inquiry involving the reconstruction of complex legal regimes that have not existed for decades. An example illustrates the problem.
Today, aliens are commonly placed in removal proceedings on the basis of rehabilitative dispositions that do not qualify as “convictions” under State law. See, e.g., Matter of Roldan, 22 I&N Dec. 512 (BIA 1999); Matter of Punu, 22 I&N Dec. 224 (BIA 1998). Before 1997, however, such dispositions did not uniformly qualify as “convictions” for immigration law purposes. See, e.g., Matter of Manrique, 21 I&N Dec. 58 (BIA 1995); Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). Under the DHS’s proposed interpretation, lawful permanent residents who received certain pre-IIRIRA diversionary dispositions apparently would be ineligible for section 212(c) relief because they would not have been deportable at the time of their convictions. Further, when such lawful permanent residents are placed in removal proceedings on the basis of their pre-IIRIRA convictions, Immigration Judges seeking to evaluate their eligibility for section 212(c) relief would presumably need to determine not only when the relevant judgment was entered but also whether the judgment had rehabilitative features that might have excluded it from treatment as a “conviction” under the understanding of Ozkok then prevailing in the relevant jurisdiction.16 Even if we assume that sufficiently detailed records of such long-past judgments would be available, it is evident that determinations of this kind could rarely be made without protracted litigation.
The foregoing considerations lead us to conclude that the AEDPA and IIRIRA amendments to section 212(c) of the Act do not apply to an otherwise eligible lawful permanent resident who is presently deportable or removable by virtue of a plea or conviction that occurred before April 24, 1996. An otherwise eligible lawful permanent resident who is presently deportable or removable by virtue of a plea or conviction entered between
C. Result
Having thoroughly considered the arguments of the parties and the Supreme Court’s decisions in St. Cyr, Judulang, and Vartelas, as well as the numerous decisions of the courts of appeals, it is our judgment that a lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for section 212(c) relief in removal or deportation proceedings unless:
- 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
- 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.
If an otherwise qualifying lawful permanent resident is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, he or she is eligible to apply for section 212(c) relief in removal or deportation proceedings unless:
- The applicant’s proceedings commenced on or after April 24, 1996, and the conviction renders the applicant deportable under one or more of the deportability grounds enumerated in section 440(d) of the AEDPA; or
- 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
- 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.
IV. CONCLUSION
In conclusion, Immigration Judges should now adjudicate the merits of any application for section 212(c) relief filed by a lawful permanent resident who satisfies the foregoing eligibility criteria. The respondent qualifies for section 212(c) relief under those criteria. His appeal will therefore be sustained, and the record will be remanded for further proceedings to address whether he merits such relief in the exercise of discretion. See, e.g., Matter of Marin, 16 I&N Dec. 581 (BIA 1978).
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.