Thursday, February 08, 2007

Caroleo: Harsh Interpretation of Section 212(c) Comparable Ground Of Inadmissibility

Caroleo v. Gonzales, No. 05-3762 (3d Cir. Feb. 7, 2007): section 212(c) relief is not available for someone in the US charged with removal based on a crime of violence aggravated felony. The Third Circuit applies Matter of Brieva, 23 I&N Dec 766 (BIA 2005), and refuses to let someone with legal permanent resident status seek 212(c) relief when charged with an aggravated felony ground of removability.

Section 212(c) granted a way for some legal permanent residents to obtain a waiver if stopped at the border on the way back to the US and charged with a ground of inadmissibility. In Matter of Silva, 16 I&N Dec 26 (BIA 1976), the BIA extended section 212(c) relief to legal permanent residents in the US charged with a comparable ground of removability.

The Third Circuit adopted the same strict approach that the BIA has adopted -- section 212(c) relief will only be available if the ground of removability listed in the case has a comparable ground of inadmissibility, regardless of whether the underlying facts would be punishable as a ground of removability and inadmissibility. Specifically, the Third Circuit feels that it does not matter that attempted murder would not only be an aggravated felony (crime of violence), but also a crime of moral turpitude. The Third Circuit ruled against the immigrant because the legal category of aggravated felonies (for crimes of violence) has no official counterpart and is not exactly the same as crimes of moral turpitude.

We will see whether more courts weigh in on this issue or whether the Third Circuit can be convinced to change its view. Update: on June 1, 2007, the Second Circuit came to a different conclusion in its Blake decision. Let's see whether the Third Circuit changes its mind or gets overruled by the Supreme Court! Further update in December 2007 -- an unpublished Third Circuit decision (Calderon-Minchola v. Mukasey 3d Cir. Dec. 12, 2007) (not published) suggests the Third Circuit is unpersuaded by the Second Circuit's ruling. Additional update -- around February 2008, Calderon-Minchola filed for a petition for rehearing the case en banc.

In dicta, the Third Circuit mentioned as an aside that someone who agreed to plead guilty before April 1996 can seek section 212(c) relief even if the official guilty plea was not taken until after April 1996. Also, someone who applied for section 212(c) relief when he had been jailed for less than 5 years can later continue to pursue the claim even if by the second time he pursues it, he was by then in jail for more than 5 years.

Further update, December 2011: we had written a while back "Let's see whether the Third Circuit changes its mind or gets overruled by the Supreme Court!" Well, looks like in Judulang v. Holder (Dec. 12, 2011), the Supreme Court overruled the Third Circuit!


Anonymous Anonymous said...

I hope his petition is denied since I am the victim of his vicious attack.

2:25 PM  

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