Sunday, August 21, 2005

Rodriguez-Munoz: Can't get 212(c) for an aggravated felony and cancellation of removal simultaneously

Filed 08/16/05, No. 05-1732
Rodriguez-Munoz v. Atty Gen USA
Rodriguez-Munoz v. Gonzales
Precedential decision

First, the jargon-filled explanation: An immigrant who has an aggravated felony conviction along with other crimes of moral turpitude cannot seek simultaneous 212(c) and cancellation of removal because the aggravated felony makes him ineligible for cancellation of removal. This does not affect the availability of relief under Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993), which permits simultaneous adjustment of status under ยง 245(a) and 212(c) relief.

Ok, now my attempt at a coherent explanation: here, someone not only committed an aggravated felony (intent to sell crack), but also crimes of moral turpitude (pot possession and possession of a drug). Based on a complex set of rules, it so happens that 212(c) relief is available to avoid deportation based on how the intent to sell crack is considered an aggravated felony. Next, the immigrant needs to get something called cancellation of removal to avoid being deported based on the two crimes of moral turpitude. It is hard to get cancellation of removal, but I will spare you the details of the many requirements to qualify for it. One requirement, though, is that you can't have an aggravated felony conviction.

The immigrant argued that getting 212(c) relief to avoid being deported as an aggravated felony convict should also be construed as allowing him to pursue cancellation of removal despite his aggravated felony conviction. The Third Circuit said no, the 212(c) waiver gives him a free pass to avoid deportation based on that conviction but it does not simultaneously give him a free pass to skip the requirement for cancellation of removal that he can't be convicted of an aggravated felony.

Remember, just because the Third Circuit issues a ruling does not mean you can't pursue the rejected theory -- it's possible that one day the U.S. Supreme Court will rule that the Third Circuit was wrong. And it's possible that the Supreme Court will say that only those who unsuccessfully raised the losing argument will benefit from its decision. So, perhaps it is wise to raise the argument that the Third Circuit rejected, in the hopes that the Supreme Court will rule that the Third Circuit's position is wrong.

Note: a few days later, in the non-precedential opinion of (Filed 08/23/05, No. 04-4430) Arriola-Arenas v. Atty Gen USA, the Third Circuit reiterated its view that 212(c) will not allow an aggravated felon to apply for cancellation of removal. And also in the non-precedential decision of (Filed 08/29/05, No. 04-3274) Campbell v. Atty Gen USA And in the non-precedential decision of Martinez-Moreno v. DHS, May 23, 2006,


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