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Waiver of Inadmissiblity Eligibility Expanded by Board of Immigration Appeals

The Board of Immigration Appeals has decided that a waiver under former Section 212(c) is now available for people who were convicted after a trial where before these people were deemed ineligible e for this relief from removal. The case is called, Matter of Abdelghany.

The Immigration and Nationality Act (Also known as The Act) is the body of law promulgated by

Congress to enforce the Nation’s immigration laws. Every so often, the Act undergoes modifications and amendments and, at times, comprehensive overhaul. The last comprehensive overhaul was in 1996. The waiver known as 212(c) was eliminated during the 1996 overhaul of the immigration laws and was replaced by a new waiver called Cancellation of Removal for Lawful Permanent Residents. This new waiver came with much stricter guidelines as to eligibility. For instance, an individual convicted of an aggravated felony cannot take advantage of a waiver under Cancellation of Removal but, in most cases, could have applied for a waiver under 212(c).

In 2001, the United States Supreme Court decided a case called INS v St. Cyr. This case stands for the premise that someone who accepts a plea offer from the State in reliance of Section 212(c) waiver being available could still apply for this waiver

even though it was repealed in 1996. The issue under this ruling was that St. Cyr had taken a plea and not chose to go to trial. Because of this, the 212(c) waiver was only available to those who accepted a plea based on the plain reading of the St. Cyr case. Many lawyers argued over the years that this holding was unfair to individuals who went to trial, lost and needed the 212(c) waiver later on.

Now, after a series of cases regarding due process and equal protection, the Board of

Immigration Appeals has decided that the holding in St. Cyr should apply to everyone who was convicted of a deportable or removable offense any time prior to April 24, 1996. Therefore, the waiver under former Section 212(c) is now available to lawful permanent residents who took a plea or went to trial.

This is a very significant change in immigration law because, prior to this case being decided,

each federal circuit dealt with the interpretation of St. Cyr differently. For instance, a person in removal proceedings in Miami could not take advantage of 212(c) but a person in removal proceedings in Philadelphia could if they were convicted after trial.

This is a common sense, logical decision more than 13 years overdue. Treating one class of persons different from another is not logical, fair and violates the basic principles of our

constitution. Of course, there are exceptions to every rule and, in some cases, people facing removal proceedings and deportation from the United States will not be eligible for a waiver under 212(c) for reasons other than whether they accepted a plea or went to trial and lost.

For a detailed analysis of your immigration case, contact Pozo Goldstein, LLP by phone or on our website at