Scholars Sidebar: Understanding § 212(c) relief

With the Supreme Court scheduled to hear oral arguments in a § 212(c) case on October 12, Judulang v. Holder, No. 10-694 (U.S.), I finally made time to read an article on § 212(c) that’s been on my to-read stack for some time. In Eligibility for Section 212(c) Relief from Deportation: Is it the Ground or the Offense, the Dancer or the Dance?, Sara Fawk, a 2010 graduate of Western New England College School of Law, does an impressive job of relaying the long history of this now-repealed form of relief and explaining the current circuit split that now finds itself in the Supreme Court’s hands. Note, 32 Western New England L. Rev. 417 (2010).

Fawk writes about § 212(c)’s history beginning with its origins in the Immigration Act of 1917 through the conflicting interpretations currently used by the BIA and courts of appeals. More than a mere history lesson, though, she places the legislative evolution of this form of relief in the context of judicial interpretations that pulled and tugged at the statutory language as courts debated whether it ought to apply to individuals in deportation proceedings and, if so, which people facing deportation.

“In 1956, in In re G—A—, the BIA first granted section 212(c) relief to a Mexican LPR who pled guilty to an excludable offense, departed temporarily, returned to the United States, and was then placed in deportation proceedings. … For about the next twenty years the availability of section 212(c) discretionary relief was limited to those LPRs, like…Mr. G—A—, who had actually departed, returned to the country, and then faced deportation. … In 1976, however, the Second Circuit effectively eliminated this physical-departure limitation on section 212(c) eligibility.” Fawk, 32 Western New England L. Rev. at 427-29.

That Second Circuit decision, Francis v. INS, 532 F.2d 268 (2d Cir. 1976), forms the basis of what many immigration lawyers have taken for granted during the last three decades—that §212(c) applies to deportation as well as exclusion. The reason, as Fawk explains, was that the court applied an equal protection analysis to § 212(c) determining that there was no rational relation to a legitimate governmental interest in allowing some individuals to seek § 212(c) relief (those who had left the United States) while denying others who were similarly situated but for one factor (they had not left the country) this benefit.

Soon the BIA adopted this approach too. Fawk, 32 Western New England L. Rev. at 429 (citing Matter of Silva, 16 I&N Dec. 26, 30 (BIA 1976)). To determine whether a person in deportation proceedings was similarly situated to one in exclusion proceedings, “[t]he BIA settled on the comparable-grounds approach to guide immigration judges in their equal protection determination.” Fawk, 32 Western New England L. Rev. at 430. Eventually DHS codified the comparable grounds approach using a “statutory counterpart” requirement in which the proper focus is the ground of removal not the underlying offense. Fawk, 32 Western New England L. Rev. at 439
(discussing 8 C.F.R. § 1212.3(f)).

According to Fawk, “In 2005, the BIA for the first time applied the new statutory-counterpart test in In re Blake.” Fawk, 32 Western New England L. Rev. at 440 (discussing Matter of Blake, 23 I&N Dec. 722 (BIA 2005)). In that case, “the BIA stressed, ‘Congress [must have] employed similar language to describe substantially equivalent categories of offenses.’” Fawk, 32 Western New England L. Rev. at 440.

Eight courts of appeals have followed the BIA’s Matter of Blake approach, Fawk writes: the First, Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh. Fawk, 32 Western New England L. Rev. at 441. These circuits determine whether a comparable ground of exclusion exists by looking only at the statutory language of the charged ground of deportation and the language of the ground of exclusion that the respondent claims is comparable. Fawk, 32 Western New England L. Rev. at 442.

In contrast, the Second Circuit adopted an “offense-specific” approach in Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007). Following that approach, the comparable grounds determination turns “not on the language of the grounds but instead on the offense committed by the petitioner.” Fawk, 32 Western New England L. Rev. at 442. No other circuit has followed the Second Circuit’s lead on this.

To complicate things, however, the Ninth Circuit rejected the comparable grounds analysis entirely in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc), Fawk continues. Fawk, 32 Western New England L. Rev. at 445-46. The Ninth Circuit “employed a[n equal protection] standard of ‘bare rationality’ and offered a legitimate reason for the different treatment of deportees who are similarly situated to excludees but for a temporary departure from the country”—namely, “‘Congress could have limited section 212(c) relief to aliens seeking to enter the country from abroad in order to create an incentive for deportable aliens to leave the country.’” Fawk, 32 Western New England L. Rev. at 446 (quoting Abebe, 554 F.3d at 1206). Accordingly, “the Ninth Circuit provides the simple result that deportable LPRs in its jurisdiction who have not left the country are not eligible for section 212(c) relief.” Fawk, 32 Western New England L. Rev. at 447.

This is a primer on § 212(C) well worth reading by anyone interested learning why we’re still talking about a statutory provision that was repealed 15 years ago and why the Supreme Court will hear arguments in Judulang on October 12.