Bretz & Coven, LLP Wins Immigration Appeal in Second Circuit

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On June 1, 2007, the U.S. Court of Appeals for the Second Circuit oveturned the Board of Immigration Appeals decision in the Matter of Blake, 23 I. & N. Dec.723 (BIA 2005). The decision expands the scope of aliens who are eligible for INA § 212(c) relief.

A team of attorneys from Bretz & Coven, LLP, Cleary Gottlieb Steen & Hamilton LLP, and Shearman & Sterling successfully persuaded the United States Court of Appeals for the Second Circuit to overturn the Board of Immigration Appeals (BIA)'s precedential decision in Matter of Blake, 23 I. & N. Dec. 722. The Second Circuit's opinion in Blake v. Carbone (2d Cir. 2007), released on June 1, 2007, expands the possibility that aliens convicted of certain aggravated felonies can receive relief from deportation under former § 212(c) of the Immigration and Nationality Act (INA).

The appeal involved four lawful permanent residents who had pleaded guilty to sexual abuse of a minor, federal racketeering, first degree manslaughter, and murder in the second degree, respectively. Each petitioner was charged with deportability under the INA for having been convicted an aggravated felony after admission to the United States. Each petitioner sought relief from deportation under former § 212(c) of the INA. The BIA found each petitioner ineligible for a § 212(c) waiver.

Relief under § 212(c) was originally available only for aliens in exclusion, rather than deportation, proceedings. In Francis v. INS, 532 F.2d 268 (2d Cir. 1976), the Second Circuit expanded the availability of § 212(c) relief to ensure equal protection for deportees who were similarly situated to excludees. To determine whether a deportee was similarly situated to an excludee, the BIA had used a "comparable grounds" test that compared the language of INA sections on deportation and exclusion grounds. The BIA denied the petitioners' requests for § 212(c) waivers because their deportation grounds - aggravated felony convictions - lacked comparative exclusion grounds.

In Blake v. Carbone, the Second Circuit held that the BIA's comparable grounds test does not comport with the holding of Francis. The court found that similar statutory language is not required for a ground of deportation to be have an equivalent ground of exclusion. Eligibility for a 212(c) waiver must turn on the underlying criminal offenses, rather than the broad ground of deportation. Thus, the Second Circuit found the petitioners to be eligible for § 212(c) waivers if their particular aggravated offenses could lead to exclusion under INA § 212(a) as crimes involving moral turpitude. The Second Circuit remanded the case to the BIA to assess the nature of the petitioners' individual aggravated felonies.

Matthew L. Guadagno, a partner at Bretz & Coven, LLP, argued on behalf of the lead petitioner, Leroy Blake, and petitioner Ho Yoon Chong. Anton A. Ware of Cleary Gottlieb Steen & Hamilton, LLP argued on behalf of petitioner Errol A. Foster. Daniel M. Segal of Shearman & Sterling argued on behalf of petitioner Aundre Singh.

About Bretz & Coven LLP
Bretz & Coven LLP is a full-service immigration law firm that specializes in deportation defense, immigrant and non-immigrant visa processing, naturalization, corporate and business immigration, and federal litigation. Formed by the merger of two firms in 1999, Bretz & Coven provides individualized attention and expert advice to clients in New York and across the nation.


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Matthew Guadagno
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