The BIA reviews the findings of fact made by the Immigration Judge to determine whether they are clearly erroneous. There is clear error in a factual finding when the reviewing body is left with the definite and firm conviction that a mistake has been committed. The BIA reviews de novo all other questions of law, discretion, and judgment, including the question whether the parties have met the relevant burden of proof.
Since the respondent’s request for relief was filed after May 11, 2005, these proceedings are governed by the provisions of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302.
The Board agrees with the respondent’s contentions that his case is covered by INS v. St. Cyr, 533 U.S. 289 (2001), in which the United States Supreme Court determined that although section 212(c) was repealed in 1996, the waiver remains available to aliens whose convictions were obtained through plea agreements and who would have been eligible for relief at the time of their plea, and that he is eligible for a waiver because he entered a guilty plea on July 21, 1991, even though he was not sentenced until October 26, 2005. It is, therefore, the date of an alien’s plea agreement, rather than the date of sentencing, that controls in determining whether the alien is eligible for a section 212(c) waiver. This is so because the Supreme Court was concerned with an alien’s reliance on the availability of section 212(c) relief when he agreed to plead guilty.
The Board agrees with both the respondent and the Department of Homeland Security that Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc) does not foreclose a section 212(c) waiver simply because an alien is charged with a ground of deportability rather than a ground of inadmissibility. The regulations at 8 C.F.R. § 1212.3 (2009) authorize an alien in removal proceedings or in former exclusion or deportation proceedings (i.e., either an alien who is seeking admission at the border or one who is inside the United States) to apply for section 212(c) relief before an Immigration Judge. Ordinarily, the Board is bound to apply the regulations. An exception to this rule may be made when a regulation is contrary to circuit court precedent, but this is not the case before the Board. Because the regulation is not limited to aliens who are at the border seeking to waive a ground of inadmissibility, the Board concludes that the respondent is eligible to apply for a section 212(c) waiver. It is important to note that nothing in this decision is intended to cast doubt on our prior holdings where the Board articulated the “statutory counterpart” rule that an alien seeking to waive a deportation ground must establish that there is a comparable ground of inadmissibility in section 212(a) of the Act.
Ordinarily, when an Immigration Judge erroneously pretermits an application for relief, the remedy is to remand the case for full consideration of the application. This case is unusual in that the factors considered in an application for section 212(c) relief are essentially the same as those considered in adjudicating an application for cancellation of removal under section 240A(a) of the Act. Indeed, in cases where an alien is eligible for both forms of relief the Board would not expect an Immigration Judge to hold separate or bifurcated evidentiary hearings on the section 212(c) application and the cancellation of removal application. The Board could therefore rely on the Immigration Judge’s discretionary decision on the respondent’s cancellation of removal application to decide whether to grant his section 212(c) waiver. However, given the confusion associated with the availability of section 212(c) relief and the respondent’s separate claim that the Immigration Judge did not give adequate consideration to all of his equities, including his significant employment history and his volunteer and civic activities, the better course is to remand for a full and complete decision on both the section 212(c) application and the application for cancellation of removal. On remand, the Immigration Judge should weigh all of the positive and negative factors presented.
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