QUESTION: I committed a crime of violence many years ago (around 1994) and have just been put into removal proceedings because I was trying to enter the US, from a vacation. Do I have any chance to get the Green Card?
Answer: At this point, first we would need to determine if you qualify for 212(c) relief since your crime was before 1996. If you plead guilty and served less than 5 years in jail and were a lawful permanent resident for more than 7 years, then we could consider 212(c) relief.
Question: Yes, I meet that criteria. Do I qualify?
Answer: Normally, prior to the issuance of a new Supreme Court case, you would not have qualified since there is no comparable ground of exclusion for ‘crime of violence’. Until repealed in 1996, §212(c) of the Immigration and Nationality Act permitted the Attorney General to grant discretionary relief to an excludable alien, if the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country and if the alien was not excludable on one of two specified grounds. By its terms, §212(c) applied only in exclusion proceedings, but the Board of Immigration Appeals (BIA) extended it decades ago to deportation proceedings as well. Although Congress substituted a narrower discretionary remedy for §212(c) in 1996, see §1229b, §212(c)’s broader relief remains available to an alien whose removal is based on a guilty plea entered before §212(c)’s repeal.
In deciding whether to exclude such an alien, the BIA first checks the statutory ground identified by the Department of Homeland Security (DHS) as the basis for exclusion. This is the crux of the new Supreme Court case. Hence, prior to the new Supreme Court case, a crime of violence simply had no equal or comparable Ground of excludability, and therefore, 212(c) would be denied.
Question: Where does it state that there must be a ‘comparable ground of excludability’?
Answer: Nowhere. That is the point. The BIA just made this rule out of what seems to be thin air. We have been fighting this for years. In fact, the 9th Circuit Court of Appeal agreed with the BIA and stated it was a valid rule. Hence, after years of fighting this unfair ruling (where there was no basis and it just came out of what the BIA felt was appropriate), the Supreme Court of the United States has spoken.
Question: What did the Supreme Court rule?
Answer: The BIA’s policy for applying §212(c) in deportation cases is “arbitrary and capricious” under the Administrative Procedure Act, 5 U. S. C. §706(2)(A).
Question: What is the legal basis that the Supreme Court used to make this ruling?
Answer: While agencies have expertise and experience in administering their statutes that no court may properly ignore, courts retain a narrow but important role in ensuring that agencies have engaged in reasoned decisionmaking. Thus, in reviewing the BIA’s action, this
Court must assess, among other matters, “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” That task involves examining the reasons for agency decisions, or the absence of such reasons.
Therefore, if you were denied a previous 212(c) hearing, because of this arbitrary reason, then you should make a motion to reopen the case right away.
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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
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