“In Like Circumstances, but for Irrelevant and Fortuitous Factors”: The Availability of Section 212(c) Relief to Deportable Legal Permanent Residents

The Board of Immigration Appeals and federal courts have held that the constitutional guarantee of equal protection requires that legal permanent residents (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.