Abstract

The discretionary waiver of removal found at former section 212(c) of the Immigration and Nationality Act, though repealed by Congress in 1996, remains available to certain eligible legal permanent residents (LPR) convicted by a plea entered prior to April 24, 1996. By its plain language, the waiver was limited to LPRs who, returning to the United States after a temporary departure, faced exclusion from admission to the United States under a ground of inadmissibility found at section 212(a). Sixty years of administrative and judicial decisions have seen the expansion of the waiver into the deportation context. The Board of Immigration Appeals and federal courts have held that the constitutional guarantee of equal protection requires that LPRs in deportation proceedings who are "similarly situated" to LPRs in exclusion proceedings, and who differ only in terms of a recent departure from the country, be treated equally with regard to their applications for section 212(c) relief. A three-way split has emerged among the U.S. courts of appeals in determining the appropriate test to decide whether deportable LPRs are similarly situated and thus eligible for section 212(c). This Note explores the complex history of the availability of the section 212(c) waiver in deportation proceedings, particularly for LPRs convicted of aggravated felonies, and urges the U.S. Supreme Court to adopt the offense-specific test utilized by the Second Circuit, as it is the only approach that safeguards the guarantee of equal protection for LPRs in deportation proceedings.

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