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New BIA Decision Expands LPR EligibilIty for 212(c) Waivers

By Susan Schreiber

If you represent LPRs in removal proceedings, you will want to take a close look at the Board's recent  decision in Matter of Abdelghany, 26  I&N Dec. 254 (BIA 2014), which presents a new framework for analyzing LPR eligibility for INA § 212 (c) waivers.  It will likely result in more LPRs qualifying for this relief.

In Abdelghany, an LPR with a conspiracy to commit arson conviction was charged with deportability on aggravated felony grounds and requested relief under 212(c).   Relying on the "comparable grounds" test, an immigration judge found Mr. Abdelghany to be ineligible for this waiver because the aggravated felony deportability ground did not have a "statutory counterpart" in the grounds of inadmissibility.  Although Mr. Abdelghany's underlying conviction would most likely trigger inadmissibility as a crime of moral turpitude, the comparable grounds test, as applied by the Board, precluded 212(c) eligibility where the charged deportability ground covers more or fewer offenses than any inadmissibility ground.  Since Mr. Abdelghany was charged with deportability for an aggravated felony, not a crime of moral turpitude, the immigration judge found that the comparable grounds test barred his eligibility for relief.

During the pendency of the appeal, however, the Supreme Court, in Judalang v. Holder, 132 S. Ct. 476 (2011), invalidated the Board's comparable grounds test, characterizing it as "arbitrary and capricious."  The Court directed the Board to fashion another policy regarding eligibility for 212(c) relief.  That new policy, set forth in the Abdelghany decision, represents the Board's attempt to establish 212(c) eligibility rules that do not lead to deportable LPRs being declared ineligible for relief "on the basis of mechanical distinctions arising from the structure of the immigration statute" Abdelghany at 259.

Which LPRs are eligible under the new Board analysis?  First, the decision abandons the comparable grounds test and concludes that all otherwise qualified applicants may apply for 212(c) relief to waive any ground of deportability, unless the applicant is subject to the certain security and international child abduction inadmissibility grounds found at INA § 212(a)(3)(A), (B), (C), or (E), and INA § 212(a)(10)(C).  Second, the Board removes any 212(c) eligibility distinction based on whether the LPR pled guilty or was found guilty after trial.   Note, however, that LPRs still remain subject to other statutory provisions precluding 212(c) eligibility.  This includes LPRs deportable based on certain specified deportability grounds in Section 440(d) of AEDPA, and LPRs convicted of aggravated felonies between November 29, 1990 and April 24, 1996, who served a term of imprisonment of five years or more.  Nevertheless, the  Abdelghany decision represents a major expansion of the availability of 212(c) relief from removal for long-term LPRs.