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Unpub. BIA 212(c) Remand (Date of Conviction)

September 30, 2016 (2 min read)

Mario R. Urizar writes: "We asked for a three panel member decision and oral argument to review INA 212(c) eligibility under Matter of Abdelghany as it applies to individuals with convictions after trial. Specifically, under the ineligibility language of IMMACT90, i.e., to "applicant[s] [who have] served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996."  Abdelghany's main proposition held "that, with a few significant exceptions, a lawful permanent resident of the United States who has accrued 7 consecutive years of lawful unrelinquished domicile in this country is eligible to apply for section 212(c) relief in removal proceedings if he or she is removable by virtue of a plea or conviction entered before April 1, 1997." 26 I&N Dec. 254, 255 (BIA 2014). Before Abdelghany, the Board used the date of the plea to determine who was eligible for 212(c). But, our question went further: what controlled for those individuals who had been found guilty after trial? Was it the guilty verdict that controlled or the sentencing (which completes the final element for a conviction)?  We argued it was the guilty verdict despite Abdelghany's language - "convictions entered."  Our client was convicted after trial and sentenced, and served, 14 years in prison for an aggravated felony. He was found guilty by a jury on May 21, 1990 but was not sentenced until December 12, 1990 (after IMMACT took effect). He was ordered removed on 2008. We filed a MTR sometime in 2014 relying on Abdelghany but the immigration court denied our motion stating that our client did not qualify for relief (212c) because he was imprisoned for a term over 5 years and his conviction was entered entered between November 29, 1990 and April 24, 1996. We subsequently appealed to the Board arguing to (1) redefine the term conviction as to the first portion of the statute's language regarding "formal judgement of guilt" (we knew this was going to get denied but wanted to take it to federal court); and (2) to treat the jury verdicts as plea agreements for purposes of INA 212(c) eligibility. Long story short, in a 2-1 decision, the Board held that for purposes of INA 212(c) eligibility, it is the date of the guilty verdict that governs eligibility in trial convictions and not the satisfaction of all the elements necessary to establish a conviction (The Board did not address the redefinition of "formal judgement of guilt" question). The majority relied on Abdelghany and Matter of Moreno-Escobosa in holding that jury verdicts are treated equally as guilty pleas. Thus, the actual date of conviction is irrelevant for all purposes of INA 212(c) eligibility."