Matter of Abdelghany – BIA Decision on Waivers

In a very important and precedent case, the Board of Immigration Appeals decided that former waiver 212(c) is now available for people who relied on the former waiver when making the decision to proceed to a trial rather than accept a plea offer. The case, Matter of Abdelghany, is a major departure from the former premise that only those who accepted plea offers in reliance on the former waiver were eligible for the 212(c) waiver.

A waiver under 212(c) is generally available to avoid deportation for those convicted of certain crimes for individuals who have accrued 7 consecutive years of unrelinquished domicile in the United States and was convicted before April 24, 1996.

A waiver under Section 212(c) was formerly available as relief from deportation under the prior Immigration and Nationality Act which was amended in 1996. After the amendment, Section 212(c) was repealed and replaced by Cancellation of Removal for Lawful Permanent Residents along with stricter eligibility requirements.

In 2001, the United States Supreme Court ruled that, even though 212(c) relief was repealed, those who accepted plea offers in reasonable reliance on 212(c) being available, could still avail themselves of the waiver. The case, INS v St. Cyr, involved an individual who accepted a plea relying on 212(c) relief. Because this particular case involved a plea offer and acceptance, the Board of Immigration Appeals only conveyed eligibility for the former waiver to those who accepted pleas and not to those who chose to reject a plea offer and proceed to trial.

In light of the recent cases of Vartelas v. Holder and Judulang v. Holder, the Board of Immigration Appeals decided that a distinction between different classes of lawful permanent residents that places one lawful permanent resident in a less advantageous position than another must be rational.

This BIA decision changes the landscape of immigration law regarding waivers that has been set in place since 2001.

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