On June 2, the Board of Immigration Appeals (BIA) — the DOJ tribunal that reviews immigration decisions — published an opinion reversing an immigration judge (IJ) grant of “cancellation of removal for certain permanent residents” under section 240A of the Immigration and Nationality Act (INA) to a Canadian national with an extensive criminal history. The key takeaway is simple: When exercising the attorney general’s discretion, adjudicators should consider the alien’s crimes, not just their convictions.
The case is Matter of Mills, and the BIA originally issued it on April 28 as an unpublished opinion. On May 29, acting Attorney General (AG) Todd Blanche directed the Board to publish it as precedent, to guide future decision-makers.
A History of the 7th Proviso, Section 212(c) Waivers, and “42A Cancellation”
In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress amended several INA provisions to address its concerns on how the then-immigration laws were being applied.
Prior to those amendments, and earlier ones in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), section 212(c) of the INA (1995) permitted the AG, and by delegation the BIA and IJs, to waive certain grounds of excludability for lawful permanent residents (“LPRs” or “green card holders”) who had resided in the United States for at least seven years and proceeded temporarily abroad to reenter, notwithstanding criminal bars to their reentry in section 212(a) of the INA.
Well, that’s how it was written at least.
This provision was commonly referred to as the “212(c) waiver”, and it replaced a much older authority in the Immigration Act of 1917, the “7th proviso”, which had given the secretary of Labor and then-AG what one court referred to as “virtually unfettered discretion to grant relief to long-time resident aliens returning to the United States after a temporary absence”.
When Congress scrapped the 7th proviso and replaced it with section 212(c) waivers in the Immigration and Nationality Act of 1952, it imposed the seven-year requirement to rein in that “virtually unfettered discretion”. So far, so good, but the reach of that waiver incrementally grew.
The U.S. Court of Appeals for the Second Circuit expanded 212(c) waivers in its 1976 opinion in Francis v. INS, allowing LPRs who had not left the United States and thus weren’t seeking to reenter, but who were charged with deportability under criminal grounds in then-section 241 of the INA, to seek waivers.
Later that year, in its opinion in Matter of Silva, the BIA adopted the holding in Francis and applied it nationwide, ruling:
The constitutional requirements of due process and equal protection of the laws mandate that no distinction shall be made between permanent resident aliens who proceed abroad and nondeparting permanent resident aliens who apply for the benefits of section 212(c) of the Act.
Section 212(c) waivers were “discretionary”, meaning that even if applicants satisfied the statutory requirements for that relief, they still had to show they deserved it in the exercise of the AG’s discretion.
In applying that discretion, IJs and the BIA were required to assess whether applicants had demonstrated sufficient “equities” to outweigh the impact of their criminality or other immigration offenses and thus merit a waiver.
As an important aside to explain how Congress arrived at the language in the current statute, prior to 1996, 212(c) waivers were available to aliens who had been convicted of aggravated felonies as defined in section 101(a)(43) of the INA for which they had been imprisoned for less than five years.
In both of its 1996 acts, Congress buckled down hard on alien criminality: AEDPA barred all aliens convicted of aggravated felonies from receiving 212(c), while IIRIRA struck 212(c) waivers entirely.
Moreover, in a conference report for an earlier version of IIRIRA, Congress complained that aliens had “exploited” 212(c), delaying their deportations by arguing for extensions of the waiver to their unique situations — as the Second Circuit had in Francis and the BIA had in Matter of Silva.
That report continued, with the conferees explaining they were enacting new section 240A(a) of the INA to “replace and modify the form of relief now granted under section 212(c) of the INA”.
Under the new provision, the AG and, by delegation IJs and the BIA, are authorized to “cancel” the removal of an alien who: has been an LPR for “not less than 5 years”; “has resided in the United States continuously for 7 years after having been admitted in any status”; and hasn’t been convicted of an aggravated felony.
Only the AG and his delegates can grant that relief, and applicants in removal proceedings seek it by filing a Form EOIR-42A with the immigration court; hence, it is often referred to as “42A cancellation”.
Matter of Mills
The respondent in Matter of Mills, Albert D. Mills, is a 60-year-old Canadian national who has had a green card for more than 30 years. As the Board explained:
He has close relationships with his son, daughter-in-law, and grandchild who reside in the United States. The respondent also maintained steady employment and consistently filed his tax returns in the United States. However, the respondent also has an extensive history of violating the law in the United States.
Specifically, Mills has “two separate convictions for criminal possession of stolen property and burglary in 2000”, a conviction for “endangering the welfare of a child” in 2004, was convicted of “driving while ability impaired (“DWAI”) in 2007”, and has a recent conviction for harassment in 2024. None constitutes an aggravated felony, however.
The BIA noted that the DWAI conviction resulted from an accident “that resulted in physical damage”, which the Board considered “a significant adverse factor”.
Mills, meanwhile, testified that the endangerment of a child conviction arose from an incident that “involved his babysitter” for which “he was initially charged with sexual abuse in the third degree”.
As for the 2024 offense, Mills had been:
charged for criminal obstruction of breathing and assault in the third degree but was convicted of harassment. The respondent testified that he had a problem with an ex-girlfriend that led to an altercation and ultimately resulted in an order of protection being issued on behalf of the victim.
The IJ granted Mills’s application for 42A cancellation, finding he had “presented numerous equities” (his long-term permanent residence and family ties) and had “sufficiently demonstrated rehabilitation”.
The government appealed, and the BIA reversed the IJ’s 42A cancellation grant.
The Board concluded Mills’s equities were “insufficient to outweigh his extensive criminal history” and found that his 2024 harassment conviction, which “result[ed] in an order of protection issued on behalf of the victim, demonstrates the ongoing nature of his recidivist behavior and undermines his claimed desire for rehabilitation and intent to change his life”.
Discretion vs. the “Categorical Approach”
With due respect to the IJ, this isn’t a close case, particularly given that Mills’s criminal activities spanned the better part of the time he had his green card and extended (with a 17-year break) to just prior to the point he sought 42A cancellation.
The AG directed the Board to publish it, however, because it demonstrates how adjudicators must look beyond the conviction statutes that support an alien’s removability to examine the facts underlying those convictions (and any other adverse facts) in deciding whether to grant discretionary relief like 42A cancellation, adjustment of status under section 245 of the INA, and asylum.
In its 2020 opinion in Barton v. Barr, the Supreme Court underscored the fact that 42A cancellation is wholly discretionary: “If a lawful permanent resident meets those eligibility requirements [in section 240A(a) of the INA], the immigration judge has discretion to (but is not required to) cancel removal and allow the lawful permanent resident to remain in the United States.”
The justices continued, explaining that section 240A(a) of the INA “operates like traditional criminal recidivist laws, which ordinarily authorize or impose greater sanctions on offenders who have committed prior crimes”.
Contrast the rules governing discretion in this context with the strict limitations on how IJs and the BIA can determine whether an alien is removable.
Because its decision was intended to be unpublished, the BIA in Matter of Mills never refers to the underlying removal grounds (the respondent and the government were familiar with the case and didn’t need a full reiteration of the record), but it appears that the government alleged — and the IJ found — that Mills’s “two separate convictions for criminal possession of stolen property and burglary in 2000” were each crimes involving moral turpitude (CIMTs), and therefore Mills was removable under section 237(a)(2)(A)(i) and/or (ii) of the INA.
In making that determination, the IJ was required to apply the “categorical approach”, which (among other things) requires adjudicators to look solely at the elements of the statute under which the alien was convicted, not the facts underlying that conviction, in determining whether the alien is removable.
Note that the foregoing analysis is an overgeneralization, as there are instances when, in applying the “modified categorical approach”, the IJ must examine the facts alleged in the indictment or complaint to determine which part of a “divisible statute” the alien was convicted under.
Even then, however, the focus when determining whether a respondent is removable as charged is what the alien was convicted of doing — not what he or she actually did.
Once the alien has been found to be removable and applies for discretionary relief from removal (again, like 42A cancellation, adjustment, and asylum), however, the facts of the crimes for which the alien was convicted — and any other adverse factors, such as crimes the alien committed but was never charged for — become directly relevant to whether that relief should be granted.
Here, Mills admitted the acts that had led in his convictions, but even if a respondent seeking discretionary relief isn’t as forthcoming, the government can offer additional evidence — such as police reports and victim statements — to show that what appears to be a nonserious offense was anything but.
Judges come to the bench with their own life experiences and thus apply discretion differently. Congress in 1917 gave free rein to immigration adjudicators in the 7th proviso to waive aliens’ criminal offenses, but limited that authority when it replaced the 7th proviso with section 212(c) in 1952, and limited it even more when it replaced 212(c) with 42A cancellation in 1996.
In Matter of Mills, the Board of Immigration Appeals (1) sets limits on how the attorney general’s discretion should be applied and (2) clarifies that in granting discretionary relief to criminal aliens, IJs should not only consider what criminal aliens were convicted of, but what they actually did.