by Jonathan D. Montag*

On November 20, 2008, the Ninth Circuit Court of Appeals, in Abebe v. Mukasey,1 put the jurisprudence regarding relief under §212(c) of the Immigration and Nationality Act (INA)2 into a time machine and transported it back to 1976 before Francis v. INS,3 by holding that an alien in removal proceedings charged under INA §237 cannot seek §212(c) relief.4 The court of appeals held that allowing arriving aliens, i.e., those applying for admission at the border, to seek §212(c) relief but not aliens who have been admitted, is rational. This ruling overturns Francis, which held that a person placed in deportation proceedings could seek §212(c) relief. The Francis case was one of the few cases where an equal protection challenge to an immigration law succeeded despite the fact that immigration laws are subjected to the lowest level of scrutiny and thus hard to win on rationality grounds.5

The Francis court found that barring §212(c) relief to aliens that accomplished admission was irrational, writing:6

The government has failed to suggest any reason why this petitioner’s failure to travel abroad following his conviction should be a crucial factor in determining whether he may be permitted to remain in this country. Reason and fairness would suggest that an alien whose ties with this country are so strong that he has never departed after his initial entry should receive at least as much consideration as an individual who may leave and return from time to time.

It is the government’s position that Congress has chosen to treat these two classes of aliens somewhat differently by providing a separate but analogous scheme of discretionary relief to the non-departing alien. Section 244(a)(2), 8 U.S.C. §1254(a)(2), allows the Attorney General to exercise discretion regarding certain deportable aliens who have been in the country for ten years following the act which was the ground for deportation. [footnote omitted]. This argument overlooks the fact that a deportable resident alien who briefly sojourns in Bermuda and then returns is eligible for discretionary consideration under Section 244(a)(2) as a non-departing alien. In addition, if otherwise qualified, he is eligible for Section 212(c) relief. See Matter of G.A., supra. Fundamental fairness dictates that permanent resident aliens who are in like circumstances, but for irrelevant and fortuitous factors, be treated in a like manner. We do not dispute the power of the Congress to create different standards of admission and deportation for different groups of aliens. [footnote omitted] However, once those choices are made, individuals within a particular group may not be subjected to disparate treatment on criteria wholly unrelated to any legitimate governmental interest. We find that the Board’s interpretation of Section 212(c) is unconstitutional as applied to this petitioner.

The Francis court was not the only court to have concluded that §212(c) should apply to aliens found inside the United States. Firstly, soon after Francis, decided on March 9, 1976, came the Board of Immigration Appeals’ (BIA or Board) agreement with Francis in Matter of Silva.7 In Matter of Silva, the BIA noted that the Solicitor General, Robert H. Bork, did not file a petition for writ of certiorari with the Supreme Court. After Francis, the new rule applied in all circuits except the Ninth Circuit, which hewed to the pre-Silva view—not that aliens who were in deportation proceedings could not seek §212(c) relief, but rather, that aliens who did not depart the United States after their convictions or who could not adjust status, could not seek §212(c) relief.8 Then, in 1981, in Tapia-Acuna v. INS,9 the Ninth Circuit joined the rest of the country and accepted the Francis approach. The Tapia-Acuna court noted that its earlier decision in the case was remanded by the Supreme Court after the Solicitor General, Rex Lee, the founding dean of the J. Reuben Clark Law School at Brigham Young University, asserted to the Supreme Court that the government no longer opposed a rule making aliens who are deportable as opposed to inadmissible eligible for §212(c) relief. The Francis view prevailed until November 20, 2008. It prevailed through the entire period of litigation after the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)10 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA),11 when the existence of §212(c) was placed in doubt. In fact, the alien in the pivotal case of the period, INS v. St. Cyr,12 Enrico St. Cyr, which resurrected §212(c) after IIRAIRA purported to repeal it, had been placed in deportation proceedings after a conviction for selling drugs. The St. Cyr decision mentions the extension of eligibility under Francis and Silva to aliens in deportation proceedings without any negative comment.

When Francis was decided, the government had an opportunity to explain why the pre-Francis rule, which was that aliens who departed any time after their convictions or who were adjusting status could seek §212(c) relief, but those who never left the United States after their convictions could not. According to the Francis court, the government provided as its reason that aliens who did not depart had their own form of relief, the old 10-year suspension of deportation found at the former INA §244(a)(2). This suggestion did not suggest why unequal treatment was rational, only that those treated unequally had their own remedy. The Francis court rejected the argument by noting that aliens who could avail themselves of §212(c) could also avail themselves of §244(a)(2), and thus the relief was not special for them.

The Francis rule did not afford §212(c) relief to all aliens in deportation proceedings. All aliens in exclusion proceedings who otherwise qualified for §212(c) relief could seek it. However, it limited relief to aliens in deportation proceedings only to those whose deportability was based on a ground of deportability that was also a ground of inadmissibility. The reason Abebe was at the Ninth Circuit was because the alien in Abebe was charged with deportability based on a criminal conviction for lewd and lascivious conduct upon a child13 in 1992. He was charged with removability under INA §237(a)(2)(A)(iii), having been convicted of an aggravated felony. There is no counterpart, referred to in §212(c) jurisprudence as a “comparative ground,” for this ground of deportability in the INA §212(a)(2) inadmissibility grounds. Because of this, the immigration judge and the BIA found that the alien in Abebe was not eligible for §212(c) relief. He petitioned for relief. He argued that because his criminal conviction is morally turpitudinous, his crime is substantially identical to the moral turpitude ground of inadmissibility,14 violating his constitutional right to equal protection. The Ninth Circuit Court of Appeals initially disagreed with this argument in its first decision in Abebe, rendered by a three-judge panel,15 and held that because §212(c) relief waives grounds of inadmissibility, notwithstanding the loosening of the availability of the relief to aliens in deportation proceedings, there still must be a “tight connection between the ground of deportability and a corresponding ground of excludability.”16 The fact that the alien’s crime in Abebe was morally turpitudinous was not enough of a connection. The alien in Abebe then took the case en banc hoping to reverse the result. Part of the hope was likely because the Second Circuit Court of Appeals abandoned strict application of the “comparative ground” requirement in Blake v. Carbone.17 It was the en banc decision in Abebe that reversed Francis and Tapia-Acuna and hurtled jurisprudence back to its state before 1976.

Until November 20, 2008, no court—from the Supreme Court, which punted in Tapia Acuna and noted the Francis rule in St. Cyr with no objection, the circuit courts in hundreds if not thousands of decisions, and the Board in Matter of Silva—ever disputed the Francis view. How could the en banc panel in Abebe so “easily” have seen a rational reason for a distinction that eluded all the justices of the Supreme Court in St. Cyr, the justices who voted to remand Tapia Acuna in 1981, Solicitor General Bork after Matter of Silva, Solicitor General Rex Lee before Tapia Acuna, and every court that considered a §212(c) case after Matter of Silva since 1976?

The reason is that the Abebe case is interpreting a statute that was passed by Congress in 1952 and repealed in 1996, not by the facts on the ground during any of those 44 years, but the facts 12 years after §212(c) was repealed. In doing so, the Abebe court, regrettably, failed to take into account all of the changes since 1952.

The crux of the Abebe finding of a rational basis for distinguishing between aliens who departed after their conviction and aliens who did not depart is:

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.[Citations omitted]. A deportable alien who wishes to obtain section 212(c) relief will know that he can’t obtain such relief so long as he remains in the United States; if he departs the United States, however, he could become eligible for such relief. By encouraging such self-deportation, the government could save resources it would otherwise devote to arresting and deporting these aliens. [Citations omitted]. Saving scarce resources that would otherwise be paid for by taxpayers is certainly a legitimate congressional objective.18

This analysis assumes that from 1952 to 1976, a permanent resident with a criminal record could not travel outside of the country and return, or that, if he were detected at a border, his predicament would be significantly different than someone inside the country who never left. As practitioners with long memories know, before technological improvements implemented after 2001, permanent residents with criminal convictions traveled in and out of the United States without being detected as inadmissible for past convictions. Thus, the distinction the majority finds in Abebe that made Congress want to encourage travel—so the aliens would be detected upon their return—did not exist at the time. In addition, while certainly there were detained aliens from 1952 to 1976, there were not nearly as many as there are now. Further, very few aliens were subject to mandatory detention, unlike now. Thus, if a permanent resident was placed in exclusion proceedings after being detected at a border, he likely would have been paroled into the United States and would have faced essentially the same process as an alien detected inside the country. Further, before 1997, permanent residents who traveled abroad and then returned to the United States, based on the Fleuti19 doctrine, were not considered applicants for admission at all and were not subject to grounds of inadmissibility. Remarkably, the Ninth Circuit, in Camins v. Gonzales,20 let stand the Fleuti doctrine. The alien in Camins was placed in removal proceedings in on January 2, 2001, upon arrival at an airport coming from abroad, based on a January 1996 conviction and charged with inadmissibility for having committed a crime of moral turpitude. The Camins court held that the alien in Camins was not inadmissible because his criminal conviction pre-dated the 1997 changes in the law and the Fleuti doctrine controlled the case. As the alien’s departure was brief, casual, and innocent, he was not applying for admission and thus could not be found inadmissible. These differences between how the system operated more than 30 years ago and today help explain why no court ever found a rational distinction in applying §212(c) to arriving aliens but not aliens found into the United States until Abebe.

Now that Abebe is the law of the Ninth Circuit, there are huge uncertainties. Should §212(c) be applied to aliens adjusting status in the United States? The BIA, in Matter of Smith,21 considered it absurd that an alien would be barred from adjusting because he could not receive a waiver when he was subject to the same grounds of inadmissibility as someone who could by virtue of being caught at the border. Now that the Ninth Circuit has decided that the distinction is rational in the general case of an alien caught inside the country or at the border, is it equally as rational for an alien adjusting status?

Similarly, in Matter of S–22 and Matter of G–A–,23 the BIA held that an alien who had committed a deportable act and had traveled outside the United States and returned to the United States after committing that act could seek §212(c) relief. Does this rule still apply?

If the requirement of Abebe is that an alien must be in a proceeding after apprehension at the border, then these cases are no longer good law. Similarly down the drain would be Matter of Azurin24 and Matter of Gabryelsky,25 which permitted a permanent resident to cure a ground of inadmissibility under §212(c) which would otherwise bar his adjustment of status. Inasmuch as these cases are based on the BIA’s considering it irrational that an alien in deportation or removal proceedings and applying to adjusting status, and as such subject to grounds of inadmissibility, or an alien having succeeded in reentering the United States after a trip abroad could not apply for §212(c) relief when an alien arrested at the border could, the Abebe court’s finding of rationality could overturn these holdings. On the other hand, if the real issue was being subject to grounds of inadmissibility, then these cases may still stand. The Ninth Circuit is now entertaining a motion by Abebe for rehearing of the case. It may be that this all becomes just a bad dream and we have not been transported back in time. Or, it is possible that other circuits will adopt the Abebe reasoning and the whole country will transport in time back to 1976.

*Jonathan D. Montag is a State Bar of California-certified Immigration and Nationality Law specialist. He has served on the editorial board of Immigration Law Today, AILA’s former bimonthly magazine. He was an AILA chapter chair. Mr. Montag has successfully argued cases before the District Court for the Southern District of California and the U.S. Ninth Circuit Court of Appeals. He has testified numeous times in the District Court for the Southern District of California as an expert in immigration law. Mr. Montag was named a 2005 Attorney of the Year by California Lawyer magazine and has been named to the San Diego Super Lawyers list for immigration, 2007–2009.

1 Abebe v. Mukasey, No. 05-76201, 2009 U.S. App. LEXIS 24 (9th Cir. Jan. 5, 2009) (en banc). The decision was withdrawn and reissued on January 5, 2009, with the same holding.

2 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §1101 et seq.).

3 Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976).

4 The grounds of removability at INA §237 relate to aliens in and admitted to the United States. Aliens charged under INA §237 are termed “deportable aliens.” Aliens seeking admission at the border or aliens who entered the United States without permission are charged with inadmissibility under INA §212(a) and are referred to as “inadmissible aliens.” Before the immigration laws changed in 1997, aliens caught inside the United States were placed in deportation proceedings and charged under what is now INA §237 grounds of deportability, while aliens caught at the border were placed in exclusion proceedings and charged under INA §212 grounds of inadmissibility (at the time called grounds of excludability). Since 1997, aliens are placed in removal proceedings as opposed to deportation or exclusion proceedings, but the distinctions between being charged with removability under INA §212, grounds of inadmissibility, or INA §237, still exist.

5 Under the minimal scrutiny test, which we consider applicable in this case, distinctions between different classes of persons must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Stanton v. Stanton, 421 U.S. 7, 14 (1975); Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

6 Francis, 532 F.2d at 273.

7 Matter of Silva, 16 I&N Dec. 26 (BIA 1976).

8 See discussion, infra, of the adjustment of status and departure and reentry extensions of §212(c) eligibility.

9 Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981).

10 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214.

11 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009.

12 INS v. St. Cyr, 533 U.S. 289 (2001).

13 Cal. Penal Code §288(a).

14 INA §212(a)(2)(A)(i)(I).

15 Abebe v. Gonzales, 493 F.3d 1092 (9th Cir. 2007)

16 Id. at 1098

17 Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007). Blake held that what is determinative in whether an alien is eligible for §212(c) relief is not what the removability grounds is called. Rather, what matters is the conduct the alien was convicted of. As the Blake court put it, “If the offense that renders a lawful permanent resident deportable would render a similarly situated lawful permanent resident excludable, the deportable lawful permanent resident is eligible for a waiver of deportation.” Id. at 103. As was pointed out in a concurrence to the en banc decision in Abebe, the Second Circuit is the only one to abandon the “comparative ground” requirement, citing to cases in other circuits upholding the comparative ground requirement: Kim v. Gonzales, 468 F.3d 58, 62–63 (1st Cir. 2006); Caroleo v. Gonzales, 476 F.3d 158, 162–63 (3d Cir. 2007); Brieva-Perez v. Gonzales, 482 F.3d 356, 362 (5th Cir. 2007); Gjonaj v. INS, 47 F.3d 824, 827 (6th Cir. 1995); Valere v. Gonzales, 473 F.3d 757, 762 (7th Cir. 2007); Soriano v. Gonzales, 489 F.3d 909 (8th Cir. 2006); Rodriguez-Padron v. INS, 13 F.3d 1455, 1459 (11th Cir. 1994).

18 Abebe, 2009 U.S. App. LEXIS 24, at *6.

19 Rosenberg v. Fleuti, 374 U.S. 449 (1963), holding that a permanent resident who made a brief, casual, and innocent departure from the United States was not seeking admission upon his return and was not subject to exclusion grounds upon his return. The Fleuti doctrine died with the passage of IIRAIRA, as the definition of admission was changed. See, Matter of Collado-Munoz, 21 I&N Dec. 1061, 1065 (BIA 1998). But cf. Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007) (overruling Matter of Collado-Munoz for pre-IIRAIRA inadmissible conduct).

20 Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007).

21 Matter of Smith, 11 I&N Dec. 325 (BIA 1965) (§212(c) available when adjusting status).

22 Matter of S–, 6 I&N Dec. 392 (BIA 1955).

23 Matter of G–A–, 7 I&N Dec. 274 (BIA, 1956).

24 Matter of Azurin, 23 I&N Dec. 695 (BIA 2005).

25 Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993).

*1 Refereneces. Back

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