Finau v. INS: 9th Circuit Rules LPR Contesting Deportability Not Eligible for 212(h) Waiver

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

FINAU V. INS: 9TH CIRCUIT RULES LPR CONTESTING DEPORTABILITY NOT ELIGIBLE FOR 212(h) WAIVER
Immigrants' Rights Update, Vol. 15, No. 8, Dec. 20, 2001

The U.S. Court of Appeals for the Ninth Circuit has ruled that a lawful permanent resident in removal proceedings may not obtain a 212(h) waiver to avoid deportability. The court rejected the respondent's argument that equal protection requires that 212(h) waivers be available to LPRs seeking relief from removal on the same basis as they are available to applicants for admission or adjustment of status. The decision issued on a petition for review of a removal order entered by the Board of Immigration Appeals.

The respondent in this case, a Mr. Finau, is a national of Tonga who was admitted to the U.S. as an LPR in 1988. In 1989 and 1992, he was convicted of petty theft. In 1998, the Immigration and Naturalization Service initiated removal proceedings against Finau, charging him with being deportable because he was convicted of two crimes of moral turpitude. To defend against his removal, Finau sought to apply for a waiver under section 212(h) of the Immigration and Nationality Act, which provides for a discretionary waiver of certain criminal grounds of inadmissibility, including the ground for having committed two crimes of moral turpitude. An immigration judge, and ultimately the BIA, found that Finau was not eligible for a 212(h) waiver because he was deportable rather than inadmissible. Finau then filed a petition for review with the court of appeals.

On appeal, a panel of the Ninth Circuit dismissed the case on jurisdictional grounds, finding review barred by INA section 242(a)(2)(C), which bars appellate review of petitions for review filed by individuals who are deportable or inadmissible because of certain criminal convictions. Finau then filed a petition for rehearing, the INS conceded that the court has jurisdiction to consider Finau's constitutional challenge, and the court reassigned the case to a new panel.

In its decision, the new panel rejected Finau's argument that section 212(h) impermissibly treats similarly situated classes of individuals differently. The panel acknowledged that, under its reading of the statute, 212(h) waivers may be available to "inadmissible" aliens but not to "deportable" aliens. However, the panel found the difference between inadmissibility and deportability to be so "long-standing and fundamental" as to preclude considering these two classifications as similarly situated. The panel did not discuss Yeung v. INS, 76 F.3d 337 (11th Cir. 1995), in which the Eleventh Circuit ruled that equal protection requires that 212(h) relief be available to a deportable LPR.

The petitioner is expected to file a petition for rehearing.

Finau v. INS, __ F.3d __, No. 00-70238 (9th Cir. Oct. 31, 2001).