The state of play for § 212(c) relief

By Stephen W. Manning

Seventeen years ago, Congress repealed INA § 212(c). Seventeen years is a long time. Seventeen years is enough time to raise a child, to travel beyond the solar system’s heliosphere, and, depending on where in the United States one lives, to watch the hatching of a new swarm of periodical cicadas. One might have the notion that four presidential election cycles would be enough time to bring to final adjudication the legal issues surrounding § 212(c) and finally allow the many long-time immigrants who could benefit from § 212(c) to move on with their lives. This post should serve to dispel such a notion by describing (1) two recent Supreme Court cases addressing § 212(c) and retroactivity and (2) procedural developments at the BIA level on how the agency views § 212(c) relief today.

(1) Judulang v. Holder, 132 S.Ct. 476 (2011), was a direct challenge to the statutory counterpart rule adopted by the Board of Immigration Appeals in Matter of Blake, 23 I&N Dec. 722 (BIA 2005). In Judulang, the Supreme Court characterized the Attorney General’s and Board of Immigration Appeals’ decision-making respecting § 212(c) eligibility as arbitrary and capricious. The “trouble” with the Attorney General and Board’s jurisprudence is that it had become “unmoored from the purposes and concerns of the immigration laws.” Id. at 490. It “allow[ed] an irrelevant comparison between statutory provisions to govern a matter of the utmost importance – whether lawful resident aliens with longstanding ties to this country may stay here.” Id. (A thoughtful, detailed analysis of Judulang is available here.)

The Supreme Court in Judulang expressly rejected the foundations of the statutory counterpart rule, rooted in an earlier Attorney General precedent, Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991). In defending its position before the Supreme Court in Judulang, the U.S. government relied on the Attorney General’s formulation of § 212(c) in Hernandez-Casillas. See Brief of Respondent, Eric H. Holder, Judulang v. Holder, No. 10-694 (filed August 2011) at 7, 22 (citing same passage); Judulang, 132 S.Ct. at 487. The Supreme Court considered this possible interpretation of § 212(c) and rejected it. Id. In rejecting this “inaccurate description of the statute,” the Supreme Court explained that “once the Attorney General determines that the alien is not being excluded [for national security or child abduction], the ground of exclusion no longer matters. At that point, the alien is eligible for relief, and the thing the Attorney General waives is not a particular exclusion ground, but the simple denial of entry.” Id.

So much for Matter of Blake.

A second Supreme Court decision, Vartelas v. Holder, 132 S.Ct. 1479 (2010), was a challenge to the retroactive application of § 101(a)(13)(C)(V) to a lawful permanent resident whose criminal offense occurred prior to its enactment. Justice Ginsburg explained that the antiretroactivity principle does not require a showing of reliance. Vartelas, 132 S.Ct. at 1491. Vartelas’s holding seems fairly straightforward. The antiretroactivity principle requires only ascertaining the legal regime in effect on the date of the relevant retroactivity event; here: the commission of an offense that gives rise to removability. Id. at 1488-89. Then, the new legal regime does not apply. Id. at 1490-91; id. at 1491 (describing St. Cyr, “[u]nder the immigration law in effect when he was convicted, he would have been eligible to apply for a waiver of deportation” and therefore “the prior law” governed.); id. at 1492 (criticizing lower court for its “misperception (treating reliance as essential to application of the antiretroactivity principle).”). For more on Vartelas, go here. Vartelas’s holding implicitly overrules numerous U.S. Courts of Appeals’ decisions interpreting and applying the antiretroactivity principle in the § 212(c) trial versus plea cases and others.

Combined, Judulang and Vartelas comprise a legal revolution that introduces a whole new paradigm.

(2) Justice Kagan, writing for the unanimous majority in Judulang, explained that, though the statutory counterpart rule was invalid (because it was like flipping coins), the Supreme Court did “not preclude the BIA from trying to devise another, equally economical policy respecting eligibility for § 212(c) relief, so long as it comports with everything held in both this decision and St. Cyr.” Judulang, 132 S.Ct. at 490. As Judulang acknowledged, the “BIA may well have legitimate reasons for limiting § 212(c)’s scope in deportation cases.” The question for the Board now is “[h]ow … to determine when an alien should receive § 212(c) relief in the deportation context?” Judulang, 132 S. Ct. at 481.

In a series of cases arising in different circuits, the Board recently requested amicus briefing on several legal questions seeking viewpoints on what to do with § 212(c) post-Judulang and Vartelas. Importantly, the Board queried what test could it adopt for determining who is eligible for § 212(c) relief? The American Immigration Lawyers Association, the Federation for American Immigration Reform, and the appellate division of the U.S. Department of Homeland Security filed briefs with different answers.

AILA proposed a simple test: (a) every noncitizen who has seven years of lawful unrelinquished domicile at the time an application for relief is made, (b) is removable, inadmissible or deportable for any reason except only national security or international child abduction, (c) based on the commission of an offense before April 1, 1997 (or April 24, 1996 in cases controlled by AEDPA) that is the basis for the immigration charge is prima facie eligible.

Not yet willing to give up a fight that it has uniformly lost at the Supreme Court (and perhaps seeking to continue the litigation of § 212(c) beyond the natural lifetime of anyone who could possibly benefit from it), DHS proposed a highly restrictive test that, on a prima facie reading, resurrects the statutory counterpart rule and violates their own regulations. DHS also dismisses the significance of Vartelas and simply states that it does not impact adjudication of § 212(c) claims because, in DHS’s view § 212(c) is so special that only St. Cyr provides the definitive holding on retroactivity.

Even FAIR’s brief was more faithful to the Supreme Court’s holdings in Judulang and Vartelas. In its brief, FAIR acknowledges that Vartelas “broadened” eligibility for § 212(c). FAIR also argued that the Ninth Circuit’s decision in Abebe should be the national test – but for reasons explained in AILA’s brief, that position lacks merit. FAIR also argued that the stop-time rule should apply to § 212(c) claims, but I couldn’t understand the argument well enough to rearticulate it here (and I also think that it is based on a fundamental misunderstanding of the statutory language at § 240A(d)(1).)

See AILA’s brief and DHS’s briefs. The briefs were just filed and the cases remain pending before the Board as of this posting.

Stephen W. Manning is an attorney in Portland, Oregon with Immigrant Law Group PC. He is a member of the AILA Amicus Committee. He can be contacted at ilgrp.com.