Immigration Article of the Day: Irreconcilable Similarities: The Inconsistent Analysis of 212(C) and 212(H) Waivers by Kate Aschenbrenner Rodriguez
Irreconcilable Similarities: The Inconsistent Analysis of 212(C) and 212(H) Waivers by Kate Aschenbrenner Rodriguez
Oklahoma Law Review (2017)
Abstract
This article examines the inconsistent, sometimes incoherent, and often irrational intersection of constitutional, administrative, and immigration law in the context of waivers of inadmissibility under the former section 212(c) of the Immigration and Nationality Act (INA) and under the current INA section 212(h), waivers frequently used to waive criminal convictions for long-term lawful permanent residents (LPR) so that such LPRs do not lose their status and may remain legally in the United States.
Each of these waivers has been the subject of extensive litigation seeking to extend their reach. Three major legal frameworks have been involved in these decisions: (1) judicial deference to an agency’s interpretation of a statute it is charged with administering under the Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.Administrative Procedure Act (APA); and (3) the guarantee of equal protection of the law under the due process clause of the Fifth Amendment to the Constitution. Not only have courts differed on how to interpret and apply particular portions of the legal standards, they have also varied widely as to whether they invoke any of these particular legal standards at all. The article unpacks the complex and often misunderstood decisions on the expansion of these waivers and highlights the significant parallels between the administrative, constitutional and immigration frameworks used. The courts have failed to recognize these parallels and, at a more fundamental level, have failed to engage in a deep analysis of any of the three legal frameworks invoked. I argue that these failures are a remnant of the plenary power doctrine and the theory of immigration exceptionalism. As courts begin to remedy these failures, the next step in the erosion of the plenary power doctrine and immigration exceptionalism will take place.
KJ