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People's Law Guide

 

Waivers for Criminal and Non-Criminal Grounds of Removal

Steven A. Goldstein
Website

01/05/11

Imagine you have lived in the United States for over twenty years. You've raised a family here, invested in property, paid taxes, etc. You are a lawful permanent resident with a green card. Returning from a trip abroad, you are detained at the airport in the U.S. and advised that you face permanent deportation from the United States due to a criminal conviction from twelve years ago. This scenario and others similar to it occur every day, throughout the United States. In some cases, these individuals qualify to seek a waiver of removal (deportation) in one of form or another depending on the factual circumstances in each case. The waivers are presented in immigration court before an Immigration Judge who is the trier of fact and law and determines whether the individual charged gets a second chance or not.

The following is a general overview of the most common waivers utilized to defend against removal or deportation. This is not meant to be a comprehensive article on waivers and each case presents its own set of circumstances that can affect statutory eligibility and judicial discretion. Those faced with removal or deportation proceedings should consult an immigration attorney. Any attorney who does not practice immigration law on a regular basis, should also consult an experienced immigration attorney if their client is not a United States citizen as is facing criminal charges or removal proceedings.

212(c) Waiver

This waiver commonly named for the section of the Immigration and Nationality Act which existed before 1996, is available to those lawful permanent residents who pled guilty or nolo contendere to crimes involving moral turpitude or even aggravated felonies prior to April 24, 1996. (See, INS v. St. Cyr, 533 U.S. 289 (2001)). A waiver under 212(c) is available to lawful permanent residents with convictions only for crimes involving moral turpitude who took plea agreements prior to April 1, 1997. Certain jurisdictions hold that 212(c) is also available to those who chose, upon reasonable reliance that a waiver would be available, to go to trial.

When determining eligibility for section 212(c) relief, it is important to remember that the pertinent date is the date the plea agreement was reached, not the actual conviction or sentencing date. 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. Sometimes it is not clear when the actual plea agreement occurred and further investigation is necessary. Often, the government alleges that the conviction date, often recorded in the allegations contained in the Notice to Appear is the controlling date for eligibility. Another important date for 212(c) relief is November 29, 1990. Anyone convicted after this date and who served more than five years in the aggregate, is ineligible for 212(c) relief.

A final note on eligibility; 212(c) relief is only available to those convicted of crimes that cause their inadmissibility under section 212 of the Immigration and Nationality Act. For instance, a firearms offense that is not also a crime involving moral turpitude would not qualify to be waived under 212(c) because there is no counterpart for a firearms conviction in section 212.

Cancellation of Removal for Certain Permanent Residents

Upon passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, section 212(c) was repealed and replaced with section 240A(a) of the Immigration and Nationality Act. This new waiver is commonly known as Cancellation of Removal for Certain Permanent Residents. Congress made it more difficult to qualify for this waiver. Essentially, there are three prongs to qualification.

  1. Must be a lawful permanent resident for at least five years before applying.
  2. Must have continuous physical presence in the United States after having been legally admitted in any status for at least seven years preceding either the commission of the crime or the service of the Notice to Appear.
  3. Must NOT have been convicted of an aggravated felony.

If an individual meets each of these three prongs, they qualify to apply for cancellation of removal.

Litigating 212(c) and Cancellation of Removal For Certain Permanent Resident cases in Immigration Court

Essentially, the entire case for these waivers hinges on whether the positive equities of the respondent outweigh the negative factors in the case, including the circumstances of the conviction. The case which provides guidance to immigration judges in their decision process is Matter of Marin, 16 I&N Dec. 581 (BIA 1978).

Waiver applications need to be supported by documents which establish the equities in the case. It is imperative to provide the client with a detailed list of the documents needed. In each case, this may vary depending on the facts present. For instance, a client may have a sick child at home and medical records are important. The more documents provided to the court to support the favorable factors in Matter of Marin, the better the case presentation.

In the end, these waivers are sought due to a criminal conviction. This is usually the most significant adverse factor in the case. It is extremely important to be forthcoming when testifying about the conviction or convictions and to take responsibility for one's conduct and acknowledge that the conduct was wrong. Unfortunately, the arrest report is given far too much weight by most immigration judges. In criminal court, the police reports are considered hearsay and are not admissible under the rules of evidence. In immigration court, however, they are admissible and sometimes indisputable. Our clients walk a fine line in disputing what is written in the police report and appearing to be "in denial" about their actions which resulted in their arrest and conviction. Again, it is critical to take as much responsibility as possible for their actions without this becoming overwhelmingly harmful to their case.

212(h) Waiver

This waiver is only available for certain crimes involving moral turpitude and for a single offense of simple possession of only marijuana of 30 grams or less. If the activity for which the individual is inadmissible is related to 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. For crimes within the 15 years preceding the application, the burden of proof is to show that removal from the United States will result in extreme hardship to a spouse, parent, son or daughter who is a lawful permanent resident or United States citizen. If, however, the crime for which the respondent was convicted is considered violent or dangerous, the immigration court will generally not favorably exercise discretion in granting a waiver under 212(h) 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. There does not exist, in the case law, a definition of what constitutes a dangerous or violent crime. A careful analysis of the underlying facts of the crime may be very helpful in arguing that the crime is not violent or dangerous.

There are further restrictions on qualifying for section 212(h) relief for those who are already lawful permanent residents. Those who are already or were at one time, lawful permanent residents prior to applying for this waiver must not have been convicted of an aggravated felony and must establish that he or she has lawfully resided continuously for seven years immediately preceding the initiation of removal proceedings. Unlike Cancellation of Removal, however, the commission of the crime does not cut off the accrual of the required seven years.

Extreme hardship is also not defined in the Immigration and Nationality Act. It is generally considered hardship above and beyond the expected hardship one would experience should a family member be deported. Typically, the stronger cases for this waiver are the cases where a qualifying relative has a serious medical issue and is reliant on the respondent for care.

212(i) Waiver

This waiver is similar to the 212(h) waiver except that this waiver addresses grounds of inadmissibility due to fraud or a material misrepresentation in order to gain an immigration benefit. 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 United States citizen or Lawful Permanent Resident. Notice, that a son or daughter of the person seeking the waiver is NOT a qualifying relative for purposes of this waiver. The person must demonstrate extreme hardship to the qualifying relative. The factors considered in determining extreme hardship to the qualifying relative include the relatives' 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.

Conclusion

These waivers were passed by Congress to give people who are the subject of removal proceedings a second chance to remain legally in the United States. It is extremely important to prepare the documentary evidence and witness testimony for a case to be successful. The consequences of a poorly presented case are generally permanent. The burden of proof when seeking a waiver in immigration court is generally on the respondent and not the government. Preparation is the key. For information on Weston Immigration Lawyer Steven A. Goldstein, click here.

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