In what may be the 1st pro-respondent decision of the Barr Era, on October 8, 2020, the Board of Immigration Appeals (BIA or Board) sustained an individual’s appeal and terminated removal proceedings on behalf of a lawful permanent resident (LPR) who was convicted of a controlled substance violation and subsequently ordered removed. Respondent, an LPR for 25 years, was convicted for several drug offenses and charged with inadmissibility per INA §212(a)(2)(A)(i)(II); the Immigration Judge (IJ) found her inadmissible as charged but granted her application for cancellation of removal under INA §240A(a). A little over 4 years later, Respondent was convicted of bank fraud and exploitation of the infirmed. DHS recommenced proceedings, charging her with removability per INA §237(a)(2)(A)(ii) and (iii), as one convicted of multiple crimes of moral turpitude (CIMTs) and for an aggravated felony fraud offense. Based on her previous drug conviction, Respondent was also charged with removability as one convicted of an aggravated felony drug offense and of a violation of a law relating to a controlled substance per INA §237(a)(2)(B)(i). The IJ declined to sustain the charges relating to the aggravated felonies and CIMTs, but sustained the charge under 237 (a)(2)(B)(i) on the basis of her older drug conviction. Citing Fifth Circut precedent, he held that the doctrine of res judicata does not preclude DHS from charging one with removability per that section based on the same conviction that provided the basis for the previous finding of inadmissibility per 212(a)(2)(A)(i)(II).
In initiating its analysis, the BIA set forth the issue presented as what effect, if any, a cancellation grant under INA §240A(a) has on the future immigration consequences of a respondent’s conviction. Citing to Fifth Circuit and Board caselaw, the decision further found that cancellation of removal is a “successor” to former INA §212(c) relief (oddly, not former INA §244 suspension of removal relief), stating that “the jurisprudence regarding section 212(c) relief generally applies with ‘equal force’ to cancellation of removal.” The BIA explained that, because a 212(c) waiver is an unconditional form of relief that fully returns one to the lawful permanent resident status he or she previously held, such a grant preserves one’s lawful status in the U.S. notwithstanding the specified offenses found by the IJ to render an applicant deportable. Thus, as has been previously held, if 212(c) is used to waive a ground of inadmissibility based on a criminal conviction, “a deportation proceeding cannot thereafter be properly instituted based upon the same criminal conviction.”
Collaterally, the Board noted that 212(c) relief is not a pardon or expungement in that prior crimes do not completely disappear from the record for immigration purposes, citing to precedent from the Fifth Circut (in whose jurisdiction this case arrises) holding that where one’s removability for a controlled substance conviction is “cancelled”, the conviction still remains on record for purposes of inadmissibility under INA §212 in conjunction with a future application for adjustment of status.
The BIA, therefore, held that if a criminal conviction was charged as a ground of removability or was known to the IJ at the time cancellation was granted under §240A(a), that conviction cannot serve as the sole factual predicate for a charge of removability in future removal proceedings. Applying this holding, the Board concluded that Respondent’s controlled substance conviction, for which she was granted cancellation, “cannot serve as the sole basis for the current charge of removability.” To hold otherwise, found the decision, would “generally render nugatory” the Attorney General’s discretionary authority to cancel removal under §240A(a) if, immediately thereafter, DHS could commence new proceedings alleging only the same conviction as the basis for a similar ground of removability. The opinion concluded by reiterating that Respondent’s past criminal history, in conjunction with any future conviction, may render her removable and ineligible for relief. Her appeal was thus sustained, the IJ’s decision vacated, and proceedings terminated. Matter of Voss, 28 I&N Dec. 107 (BIA 2020).