What waivers are available for criminal and non-criminal grounds of removal under 212?

 

A: 212(c)


A waiver under former section 212(c) of the Immigration and Nationality Act is available to those lawful permanent residents with aggravated felony convictions who pled guilty/nolo contendere or who were convicted after trial prior to April 24, 1996.  INS  v. St. Cry, 533 U.S. 289 (2001).  Whether a waiver is available to an individual availed himself of the right to trial depends on the federal circuit court of appeal with jurisdiction over the court. A waiver under 212(c) is available to lawful permanent residents with convictions for crimes involving moral turpitude who pled or went to trial (depending on the circuit court) prior to April 1, 1997.

In jurisdictions where section 212(c) is only available to those individuals who pled to their convictions the argument should still be made that the rationale of reliance on the availability of 212(c) relief should also apply to those who availed themselves of the right to trial.  This is a developing area of law and the arguments should be made before the immigration court to preserve the arguments for appeal.

 
When determining eligibility for section 212(c) relief based on a plea the starting point for the analysis is the date that the plea was agreed to by the individual.  In many criminal jurisdictions the plea is agreed to before sentencing.  Sometimes the plea is orally agreed to by the defense and the prosecution prior to going to court and putting the agreement on the record.  The key date is the date that the plea was agreed to by the parties, not necessarily when the criminal judge accepted the plea. 

Additionally, to be eligible for 212(c) relief the individual must not have been convicted and served more than five years in prison after November 29, 1990.  If the individual was convicted before November 29, 1990, and served more than five years after this date he or she is still eligible for 212(c) relief.2  An individual who was convicted after November 29, 1990, is ineligible for 212(c) relief if he has served more than 5 years in prison.

 
212(d)(3)
 
A 212 (d)(3) waiver is available to a non-immigrant visa holder seeking admission to the United States.  It is not available to someone who has engaged in genocide, espionage, sabotage, has sought to overthrow the government by force, or any unlawful activity. 

 
As the BIA decided in Matter of Hranka, 16 I & N Dec. 491, Int. Dec. 2644 (BIA 1978), the factors looked at to determine a 212(d)(3) waiver include the reasons for the applicant's seeking entry into the U.S., the seriousness of the applicant's criminal background or violation of immigration law, and the risk of harm to society if the applicant is admitted.  The Board held that the factors addressed above need not be "compelling", as there exists no statutory requirement for someone to present compelling reasons in order for them to enter the United States.  As such, a balancing of the equities should be employed in assessing the likelihood of success for a 212(d)(3) waiver.    

 212(h)

A non-lawful permanent resident may seek waivers under section 212(h) for the following:

  •  prostitution;
  • commission of more than one crime;
  • crimes where immunity was asserted and;
  • single offense of simple possession of 30 grams or less of marijuana;
  • crimes involving moral turpitude. 

It is unavailable for controlled substance and trafficking offenses.  Nor is it available for individuals convicted of or who have attempted having admitted to murder or acts involving torture. 

 
If the activity for which the individual is inadmissible is related to prostitution or occurred more than 15 years before the date of application for adjustment, the individual only has to establish rehabilitation and that his admission would not be contrary to national welfare, safety, or security of the United States.5  This is a much easier burden of proof than establishing a waiver for criminal activities that occurred within 15 years of application for adjustment.  This particular waiver for criminal activities beyond 15 years is easily overlooked.  This is why it is particularly important to carefully analyze the record of conviction to ascertain the exact date of criminal activity.

A non-lawful permanent resident whose criminal activities, except prostitution, causing inadmissibility which occurred within 15 years of the application for adjustment may be eligible for a waiver under 212(h)(1)(B) if it is established that the individual's removal will result in extreme hardship to a spouse, parent, son, or daughter who is a lawful permanent resident or United States citizen. 

The regulation found at 8 C.F.R. section 1212.7(c)(9)(d) severely limits the standard of proof for individuals attempting to apply for a 212(h) waiver whose crimes are considered violent or dangerous.  If the criminal activity involves violent or dangerous crimes the immigration court will generally not favorably exercise discretion in granting a waiver under 212(h)(2) except in extraordinary circumstances.  The extraordinary circumstances are national security or foreign policy considerations or where exceptional and extremely unusual hardship is clearly demonstrated.  Even if extraordinary circumstances are shown, the Immigration Court, depending on the gravity of the offense, may not favorably exercise discretion.  The result is that individuals must establish that their qualifying relatives would suffer exceptional and extremely unusual hardship instead of just extreme hardship.

 
This regulation can be subject to challenge in Immigration Court.  The starting point for a challenge to this regulation is that there is no statutory or regulatory definition for a violent or dangerous crime.  Former Attorney General John Ashcroft promulgated the regulation based on a case where he reversed the decision of the Board of Immigration Appeals in Matter of Jean, 23 I&N Dec. 373 (AG 2002).  It was the judgment of the Attorney  General in Matter of Jean that where the criminal conduct is as serious as that of the Respondent,  where she beat and shook a child to death, the balance of equities will nearly always require a denial of discretionary relief.  Matter of Jean at 383.  The Attorney General went on to decide that, "It would not be a prudent exercise of the discretion afforded to me by this provision to grant favorable adjustments of status to violent or dangerous individuals except in extraordinary circumstances, such as those involving national or foreign police considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship.  Moreover, depending on the gravity of the alien's underlying criminal offense, such a showing might still be insufficient."

The Attorney General did not provide a definition for a violent or dangerous crime or what constitutes such a crime.  The closest he came to a definition is the example of the crime in Matter of Jean as a violent or dangerous crime.  Therefore, the crime at issue in a section 212(h) case may be subject to divergent interpretations as to whether it is violent or dangerous, especially when compared to the crime in Matter of Jean.  A careful analysis of the underlying facts of the crime may be very helpful in arguing that the crime is not violent or dangerous.

 
Section 212(h) of the Act clearly sets forth limitations or restrictions as to the eligibility of lawful permanent residents for a waiver under this section.  The limiting provision at issue provides as follows:
No waiver shall be provided under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.

212(i)


A fraud waiver under 212(i) for violation of fraudulent or material misrepresentation is available if the person is the spouse, son or daughter of a USC or LPR.  The person must  demonstrate extreme hardship to the USC or LPR spouse or parent.  The factors considered in determining extreme hardship to the qualifying relative include the USC or LPRs ties to the country of removal and the U.S., the conditions of the country of removal and significant health  conditions of the USC or LPR, employability in the country of removal and the financial, emotional, cultural conditions of the country of removal.  

The waiver is also available to a self petitioned battered spouse who can also demonstrate extreme hardship to him/herself or her USC or LPR parent or child. The 212(i) waiver is unavailable to waive 212(a) (6) (F) arising from a final order under

INA 274C.