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Aggravated Felons And 212(c) Relief

by Pravinchandra J. Patel

I wrote two articles in 2007. The first article (Any Relief for Aggravated Felons? A brief note on a valuable lesson: A close and in-depth examination could lead to relief even for aggravated felons) was published in the Immigration Daily of ILW.COM on September 20, 2007; and the second was in fact an Addendum and Errata, that was published in the Immigration Daily of October 16, 2007. In this article I wish to limit myself to depicting the latest saga of the proceedings in the Immigration Court and the ultimate result on appeal recently issued by the Board of Immigration Appeals.

First, the facts: The alien was convicted in January 1997, pursuant to a guilty plea in New York of an attempted criminal sale of a controlled substance in the fifth degree. He was not sent to jail but kept on probation, which he successfully completed. For about eight years thereafter, he continued to live a quiet life beyond the ICE radar as a lawful permanent resident. After getting married late in 2004, and while he was returning to the United States pursuant to a brief visit overseas, his criminal record came to light of the CBP/ICE officials and as a result he was not allowed to enter as an LPR but placed in removal proceedings because he was removable as an arriving alien convicted of a controlled substance violation pursuant to INA 101(a)(13)(C)(v) and 212(a)(2)(A)(i)(I) [8 USC 1101(a)(13)(C)(v) and 1182(a)(2)(A)(i)(I)].

In the Immigration Court, alien's former counsel obtained a couple of adjournments but eventually both he and the IJ advised him that there was no provision in the law for relief for him. He and his family therefore sought legal advice from two other attorneys, but no one gave any hope for relief. Indeed one attorney flatly told him that by agreeing to a guilty plea he had signed his own deportation warrant and that he could not do anything to save him. That is when through the intervention of a common family friend the alien family came to me and frankly disclosed that other lawyers were not at all positive about the outcome. Realizing the gravity of the situation for the entire family, initially I conducted my own research to determine whether or not there was any possibility of making a credible representation and defense on his behalf to be able to present a viable claim for relief. Since I had a vague recollection of the former 212(c) provision and the relevant body of case law, both administrative and judicial, I spent some time researching that issue in-depth and it was fairly easy to do so.1

I may inject a side-note at this juncture. For nearly 2 years while the case was in the Immigration Court, ICE remained silent or oblivious but then, all of a sudden, sort of woke up with a perception, albeit erroneous, that the alien should be kept in mandatory detention. So, two ICE officials showed up in the Court and processed him for holding in mandatory detention. Immediately, we pursued a request for redetermination of custody status before another IJ, and after 12 days had the alien released on bond. Upon his release from ICE custody, the case was again transferred back to the same Judge who was in charge of the case for nearly two years.

My research convinced me of the following: 1) 212(c) as amended by the Immigration Act of 1990 precluded relief to any alien who was convicted of an aggravated felony and served a sentence of imprisonment for at least 5 years. Thereafter, for a brief period from April 24, 1996 when the AEDPA became effective, until April 1, 1997, the preclusive language of 212(c), as amended by 440(d) of the AEDPA stated that 212(c) relief was not available to "an alien who is deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i)." In the final phase, effective April 1, 1997, the IIRIRA removed 212(c) from the INA. Historically, 212(c) relief was available to any inadmissible or deportable alien even though the alien may have been convicted of one or more aggravated felonies, unless the preclusive language in effect at any given time rendered the alien ineligible for relief, as noted above.

The 1990 Act language, in effect since November 29, 1990, was indeed simple enough for understanding who was and who was not covered; it said that any alien who was convicted of an aggravated felony and who served a sentence of imprisonment for at least 5 years was precluded from claiming 212(c) relief. However, the alien here was not covered by this language for two reasons, first his conviction occurred in January of 1997, and the 1990 Act provision ceased to be effective as of April 24, 1996, because AEDPA language remained supreme between April 24, 1996 and April 1, 1997.

The amendment to 212(c) made by 440(d) of the AEDPA was curiously differently worded such that it created a normal curiosity in my mind as a lawyer and advocate because while it expressly precluded relief if the alien was "deportable" for "having committed any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i)," it left open an obvious question what if an alien was only charged as an inadmissible alien under 212(a)(2), and not as a deportable alien under 241(a)(2).

Interestingly, the legacy INS proceeded under the assumption that even though 212(c), as amended by 440(d) of the AEDPA, does not expressly include in its preclusive effect any alien who is inadmissible under 212(a)(2), all such aliens are nonetheless barred from relief and operated with that assumption. My hunch is that this erroneous thinking may have resulted in the deportation of innumerable aliens who could not present a legal fight in the Immigration Courts. However, one Samuel Fuentes-Campos was not one of them, who indeed presented his 212(c) relief application to the IJ, and when IJ denied relief, he went up to the BIA and the BIA issued a seminal decision in Matter of Fuentes-Campos, 21 I & N Dec. 905 (BIA 1997).

This decision encouraged me to continue my research, which led me to a discovery that Matter of Fuentes-Campos was never overruled or superseded or modified by the BIA or by any Federal Court.2 Rather, I found a few subsequent BIA decisions in my book which expressly approved the holding in Matter of Fuentes-Campos. My research also led me to the Second Circuit decision in St. Cyr v. INS, 229 F.3d 406 (2000), which was later affirmed by the U.S. Supreme Court in its momentous decision in 2001 (INS v. St. Cyr, 533 U. S. 289, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001)). Both the Second Circuit and the Supreme Court ruled that the amendments to 212(c) made by AEDPA and IIRIRA were not retroactive in operation and that 212(c) relief still remained 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.

These results created an opening I was looking for, which indeed stirred in me a feeling of excitement for the alien, who I then thought had a fair chance of presenting a good defense only because he could meet all the requirements for relief. He was convicted in January 1997, pursuant to a guilty plea in New York of an attempted criminal sale of a controlled substance in the fifth degree, and therefore in terms of timing, was clearly covered by 212(c), as amended by 440(d) of the AEDPA; he was charged with removability only as an arriving alien convicted of a controlled substance violation pursuant to INA 101(a)(13)(C)(v) and 212(a)(2)(A)(i)(I).

Subsequent to the 2001 Supreme Court's St. Cyr decision, the DOH and DOJ had to amend their regulations at 8 CFR 212.3 and 1212.3, respectively; more specifically the DOJ added a new subsection (h) to 1212.3, which clearly covered all such aliens like him.

After I became convinced that the alien was at least eligible for 212(c) relief, and when I came to know about his life history as a student and as a public school teacher with many awards to his credit and remarkable letters that he had periodically submitted to various State agencies to get his teaching license and certificates, I was even more encouraged that he had indeed a solid case that could be presented to IJ. And that is what I did. I frequently tried to persuade the ICE counsel to agree to a grant of relief, but she was adamant enough not to relent, and the IJ, while appreciative of my efforts as defense counsel and once openly stating to the alien that he was represented by an excellent counsel, yet ultimately denied relief.

Immediately we filed an appeal to the BIA, and in just about one year on September 4, 2009, a 3-member panel of the BIA issued a decision, sustaining our appeal, reversing the IJ, and holding that the alien was indeed eligible for 212(c) relief. As the BIA ruled, to quote the operative language:

"The Immigration Judge's interpretation of 8 C.F.R. 1212.3(f)(4) is certainly plausible if the regulation is viewed in isolation. However, the regulatory history of the provision offers no indication that it was intended to supersede or depart from Fortiz [21 I & N Dec. 1199 (BIA 1998)] and Fuentes-Campos [21 I & N Dec. 905 (BIA 1997)]. Moreover the concurrent regulation promulgated at 8 C.F.R. 1212.3(h)(2) explicitly references AEDPA 440(d) itself, unambiguously reflecting its drafters' understanding that the statute ? as interpreted by this Board and the Federal Courts ? was to remain the touchstone for analysis with respect to applications for section 212(c) relief filed by LPRs who pled guilty to removable offenses between April 24, 1996 and April 1, 1997. Thus, although we find 8 C.F.R. 1212.3(f)(4) to be ambiguous as to the scope of its coverage, we resolve the ambiguity by holding that the regulation bears the same meaning as the statute it was intended to implement. Accordingly, with respect to LPRs who pled guilty to removable offenses when AEDPA 440(d) was in effect, we conclude that the aggravated felony preclusion of 8 C.F.R. 1212.3(f)(4) applies only if the alien was charged and found deportable or removable under section 237(a)(2)(A)(iii) of the Act."

The BIA remanded the matter to IJ for further proceedings consistent with the foregoing decision.

Indeed, the case file has gone back to the IJ, and he has scheduled a hearing in January 2010. In view of the alien's now established 212(c) eligibility, I believe the IJ will decide whether the alien should be granted relief as a matter of discretion. In this regard, my calculated judgment is that the IJ would grant relief and conclude the proceedings because he is already on the record stating, "I find that, had the Respondent been statutorily eligible for 212(c) relief, he would have met his burden of demonstrating that his application merits a favorable exercise of discretion."

The clear lesson of this saga is that attorneys as counsel should not be fatally influenced by the current official thinking regarding the interpretation of any INA provision; rather being advocates that we are supposed to be representing an individual in his or her fight against the system of behemoth proportion, and no matter how hard and difficult it may be, we should do some hard work utilizing our own original thinking and creativity. Then only we can hope to succeed.

Copyright 2009 by Pravinchandra J. Patel. All rights reserved.


End Notes

1Appendix 25 in the 2009-10 edition of my own book "The Whole Act - INA" includes the language of 212(c) in effect at different times, as amended by the Immigration Act of 1990, AEDPA in effect from April 24, 1996, and IIRIRA when it removed 212(c) effective April 1, 1997. And, my work on Patel's Immigration Law Digest enabled me to find some useful case law on 212(c) waiver.

2Another of my immigration books, Patel's Citations of Administrative Decisions, which provides the status and standing of any published administrative decisions. It also enables one to get all subsequent administrative and judicial decisions that may have referenced any published earlier administrative decisions.


About The Author

Pravinchandra J. Patel, Esq. is a practicing attorney in New York and can be reached at 1270 Broadway, Suite 411, New York, New York 10001; (212) 279-3230; email: pjpatel@immigrationbypatel.com. For more than three decades, besides practicing immigration law, he has authored/compiled/edited and regularly updated source materials for fellow immigration attorneys through his immigration books, see http://www.usimmigrationbooks.com. The opinion and information expressed in this article is not intended to provide guidance in any specific case or to any individual. Rather, it is intended for general information.


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