Bad News on 212(c) and Blake from the Ninth Circuit

This is bad.  In Abebe v. Gonzales (7/9/07) the Ninth Circuit upheld the BIA’s Matter of Blake decision for 212(c) cases.   That decision in practice severely limits what aggravated felony convictions can be waived under 212(c).  (To be waivable under 212(c), any conviction must have been received before operative dates in 1996 and must meet other criteria.)

In practice, under Blake a person applying for 212(c) as a relief to a charge of deportability can only waive DRUG OFFENSES that are aggravated felonies.  We have put forward other tricky arguments, but that will be taken as the norm.  This, of course, wipes out a good deal of the usefulness of the 212(c) waiver, which often is used to waive aggravated felony convictions such as theft or sexual abuse of a minor.   

Blake does NOT not apply to persons applying for adjustment as a defense to removal (unless the opinion, which I just skimmed, does something  bad to that that I didn’t notice), or to persons who re-entered the U.S. after a trip abroad.

I assume that there will be an appliction for a rehearing en banc.  Judge Berzon was on the panel and filed a concurrence saying that she disagrees with the decision but felt compelled to support it because of a past Ninth Circuit decision. 

The ILRC, UC Davis Clinic, and National Immigration Project were amici in the case.   Zach Nightingale and Bob Jobe represented Abebe.

Kathy Brady
Immigrant Legal Resource Center
1663 Mission Street, Suite 602
San Francisco CA 94103

Additional comment from Nora Privitera of the ILRC:

As you know, there is a 2dh Circuit case that is contra, and that supports granting 212(c) based on a Francis equal protection argument, so that is a good ground (in addition to Judge Berzon’s opinion) for asking for rehearing.  That case is, FYI, Blake v. Carbone, No. 05-2988, 05-4188, 05-2643, 05-4382

bh