Board of Immigration Appeals Rules that Date of Plea Agreement, Not Sentencing, Determines Eligibility for 212(c) Waiver

Matter of Alejandro MORENO-ESCOBOSA, 25 I&N Dec. 114 (BIA 2009)

The Board of Immigration Appeals has sustained the appeal of a Green Card holder who is a native and citizen of Mexico, and the father of four United States citizen children. Unfortunately, on July 21, 1991, Mr. Morena-Escobosa pled guilty in Arizona for unlawful possession of more than 8 pounds of marijuana. He was sentenced fourteen years later on October 26, 2005, to more than four years of imprisonment. The delay in sentencing resulted because Mr. Moreno-Escobosa disappeared after entering his guilty plea.

When Immigration Court proceedings were instituted against Mr. Moreno-Escobosa he argued that despite his conviction he remains eligible to apply for relief from removal under former INA §212(c) because he entered a guilty plea on July 21, 1991, prior to the repealing of INA § 212(c).

Mr. Moreno-Escobosa’s argument was predicated on the United States Supreme Court’s ruling in INS v. St. Cyr, 533 U.S. 289 (2001), where the Court determined that despite the fact that section 212(c) was repealed in 1996, the waiver remains available as a form of relief from removal to individuals who had been convicted by a plea agreement, and where at the time they entered their plea they would have been eligible for a 212(c) waiver.

The Board agreed with Mr. Moreno-Escobosa sustaining his appeal entering the following ruling:

(1) The date of an alien’s plea agreement, rather than the date of sentencing, is controlling in determining whether the alien is eligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994); and

(2) The decision of the United States Court of Appeals for the Ninth Circuit in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. § 1212.3 (2009), so as to preclude an alien who seeks to waive a deportation ground from establishing eligibility for section 212(c) relief.

The case has been remanded back to the Immigration Court so that the Court can properly evaluate all of Mr. Moreno-Escobosa’s equities which include his significant employment history and his volunteer and civic activities.