Narrative Opinion Summary
In this case, the petitioner, a native and citizen of China, sought review of the Board of Immigration Appeals' (BIA) decision denying a discretionary waiver of removal under the repealed Section 212(c) of the Immigration and Nationality Act (INA), following two convictions involving moral turpitude and an aggravated felony, kidnapping. The BIA upheld the removability findings and dismissed the petitioner's motion for relief, determining that Section 212(c) relief was only applicable if there was a corresponding ground of excludability under Section 212(a) of the INA, consistent with Ninth Circuit precedents. The petitioner contended that this created an unconstitutional classification, violating the Equal Protection Clause. However, during the proceedings, the Ninth Circuit en banc reversed its prior stance, clarifying that Section 212(c) relief is available exclusively to aliens seeking entry, thus rendering the petitioner's claims for relief inapplicable. The petition for review was ultimately denied, reinforcing that no relief under Section 212(c) was available in removal proceedings. The decision was not published as precedent, and the case upheld the Supreme Court's previous determination that the repeal of Section 212(c) does not have retroactive effect on individuals who pled guilty prior to its repeal.
Legal Issues Addressed
Discretionary Waiver of Removal under INA Section 212(c)subscribe to see similar legal issues
Application: The case involves the denial of a waiver of removal under former INA Section 212(c), which was repealed, but the petitioner argued for its applicability.
Reasoning: Wai Shek Kwong sought a review of the Board of Immigration Appeals (BIA) denial of a discretionary waiver of removal under former Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c), which was repealed in 1996.
Equal Protection Clause and INA Section 212(c)subscribe to see similar legal issues
Application: The petitioner challenged the application of Section 212(c), arguing it created an unconstitutional classification under the Equal Protection Clause.
Reasoning: Kwong argued that this distinction created an unconstitutional classification that violated the Equal Protection Clause.
Jurisdiction for Review under INA Section 242subscribe to see similar legal issues
Application: The jurisdiction for reviewing the BIA's decision was established under INA Section 242.
Reasoning: The jurisdiction for this review was established under INA § 242, 8 U.S.C. § 1252.
Ninth Circuit Precedent on INA Section 212(c)subscribe to see similar legal issues
Application: The Ninth Circuit precedent was reversed en banc, affecting the applicability of Section 212(c) to aliens in removal proceedings.
Reasoning: Subsequent to the parties’ initial briefs, the Ninth Circuit en banc reversed prior precedent, ruling that Section 212(c) applies solely to aliens seeking entry rather than those in removal proceedings.
Retroactivity of INA Section 212(c) Repealsubscribe to see similar legal issues
Application: The Supreme Court had previously determined that the repeal of Section 212(c) does not apply retroactively to those who pled guilty before its repeal.
Reasoning: The Supreme Court has previously ruled that the repeal of Section 212 does not apply retroactively to individuals like Kwong who pled guilty to removable offenses before the repeal.