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Practice Advisory: BIA revises policy to allow many more LPRs with pre-1996 convictions to apply for 212(c) waivers of deportation

On February 28, 2014, the Board of Immigration Appeals issued Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), in which the Board ruled that a lawful permanent resident immigrant who has accrued 7 consecutive years of lawful domicile in the U.S. may seek a waiver of removal for most deportable criminal offenses if the plea or conviction was entered before April 24, 1996 (or, in certain limited cases, before April 1, 1997). As a result of this decision, such long-time permanent resident immigrants should be able to seek waivers under former Immigration and Nationality Act Section 212(c) so long as the conviction or convictions in question do not fall within certain national security or international child abduction grounds, and are not aggravated felony convictions entered after November 29, 1990 for which the person served 5 years or more in prison in the aggregate.

This decision overrules prior BIA decisions that had held that immigrants could not seek such waivers of deportation for several categories of deportable offenses that lacked substantially equivalent statutory counterparts in the criminal inadmissibility grounds. See, e.g., Matter of Blake, 23 I&N Dec. 722 (BIA 2005), and Matter of Brieva, 23 I&N Dec. 66 (BIA 2005) (relating to certain aggravated felony categories). The decision also abrogates a Justice Department regulation that had declared 212(c) relief unavailable to those convicted after trial, and rules that an immigrant may now seek such relief without regard to whether the relevant conviction resulted from a plea agreement or a trial.

The decision relies in large part on the recent U.S. Supreme Court decisions in Judulang v. Holder, 132 S. Ct. 476 (2011), and Vartelas v. Holder, 132 S. Ct. 1479 (2012) — see IDP practice advisories relating to the Supreme Court decisions in Judulang and Vartelas.

IDP and pro bono counsel Mark Fleming of Wilmer Hale (attorney for the petitioner in Judulang) provided assistance to the American Immigration Lawyers Association (AILA) in the development of the amicus curiae brief submitted by AILA arguing for the relief granted by the BIA in this case. For a practice advisory on the implications of Matter of Abdelghany for lawful permanent residents seeking 212(c) relief from removal for pre-1996/1997 plea agreements/trial convictions, see Practice Advisory (with Sample Motion to Reconsider with the BIA) prepared by IDP with the National Immigration Project.

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