Unpub. BIA Waiver Victory: Matter of M-S- (Feb. 9, 2017)

Matthew L. Hoppock writes: "This is a case where our client had an old conviction that was an Aggravated Felony and a crime involving moral turpitude, but was waivable under INA 212(c).  He also a conviction that was too recent to be waived under INA 212(c).  The DHS charged him with removability under INA 237(a)(2)(A)(ii) for having two crimes involving moral turpitude.  We argued if the IJ waived the old conviction he wouldn't have two and he wouldn't be removable.  The IJ relied on an old BIA decision, Matter of Balderas, to hold that a waiver of the old conviction didn't mean it couldn't be used to charge our client with removability under 237(a)(2)(A)(ii).  We appealed to the BIA and lost and then appealed to the Eighth Circuit.  The DOJ agreed, once we got to the Eighth Circuit, that the agency's application of the law, specifically Matter of Balderas, seemed incorrect and joined us in a motion to remand the case to the Board.  Now the Board has concluded that when an old conviction is waived under INA 212(c), that same conviction can't be used as one of the two crimes involving moral turpitude to charge someone with removability under INA 237(a)(2)(A)(ii)."