Aliens who engage in certain criminal conduct are inadmissible or ineligible for a visa or admission into the US. INA 212(h) authorizes the waiver of inadmissibility arising from the following: (1) conviction or commission of a crime involving moral turpitude; (2) convictions for 2 or more offenses for which the aggregate sentence was 5 years or more; (3) engaging in prostitution or procuring prostitutes; (4) involvement in serious criminal activity where immunity from prosecution was asserted; and (5) conviction or commission of a single offense of simple possession of 30 grams or less of marijuana.
There are 3 types of waiver under INA 212(h), the: (a) 15-year waiver; (b) hardship waiver; and (c) battered spouse waiver. There are also special rules for lawful permanent residents (LPR) and those convicted of violent and dangerous crimes.
First, an alien who married a US citizen (USC) or LPR but who was battered or subjected to extreme cruelty by the USC or LPR spouse may file a battered spouse petition under the Violence Against Women Act (VAWA). A battered child may also file under this provision. If this battered spouse or child, who filed a VAWA petition, applies for LPR status but is inadmissible due to a qualifying criminal conduct, INA 212(h) would allow her to apply for a waiver. The requirements for granting the waiver are: (1) the alien is a battered spouse or child petitioner; and (2) USCIS or the Immigration Judge (IJ) exercises favorable discretion.
Second, if an alien is inadmissible for engaging in prostitution or procuring prostitutes, he may obtain a waiver if he meets the following requirements: (1) the alien is only inadmissible for engaging in prostitution or procuring prostitutes and for no other ground; (2) this conduct occurred more than 15 years before the alien’s visa, admission or adjustment application; (3) the alien’s admission would not be contrary to national welfare, safety, or security; (4) the alien has been rehabilitated; and (5) USCIS or the IJ exercises favorable discretion.
Third, an alien who is inadmissible due to any qualifying criminal conduct may also obtain a waiver if: (1) he could show that, if he is denied admission, his USC or LPR spouse, parent, son or daughter would suffer extreme hardship; and (2) USCIS or the IJ exercises favorable discretion.
The common requirement in all 3 waivers is the favorable discretion of USCIS or the IJ. What we mean by this is that USCIS or the IJ will balance the adverse factors, which show the alien’s undesirability, with the positive and humane considerations in the alien’s favor. Adverse factors include, among others: (1) the nature and circumstances of the criminal conduct involved; (2) significant violation of immigration laws; (3) other criminal conduct; and (4) evidence of bad character. Favorable factors include, among others: (1) family ties in the US; (2) long residence in the US; (3) stable employment; (4) property or business ties; and (5) evidence of good character. The weighing of these competing factors is an inherently unpredictable task that depends on the circumstances of the case and the adjudicator’s judgment. It’s futile to predict outcomes. All you can do is make a comprehensive presentation of all factors, explain the significance of each positive factor, and argue how these positive factors outweigh the undesirable ones.
Another common limitation on all INA 212(h) waivers is 8 CFR 212.7(d), which prohibits the exercise of favorable discretion for aliens who are involved in violent and dangerous crimes, except in extraordinary circumstances such as: (1) those involving national security or foreign policy considerations; or (2) where the alien demonstrates that denial of the visa, admission, or adjustment would result in exceptional and extremely unusual hardship, which is a standard higher than extreme hardship.
INA 212(h) is also available to LPRs who end up in removal proceedings for engaging in criminal conduct after obtaining their residence. However, these LPRs cannot apply for a waiver if, since their date of admission as LPRs, (1) they have been convicted of an aggravated felony; or (2) they have not resided continuously in the US for a period of not less than 7 years immediately preceding the date of initiation of their removal proceedings.
You must be wondering why a non-LPR convicted of an aggravated felony may apply for a waiver but an LPR convicted of an aggravated felony cannot. LPRs are in a worse position in this case because, as explained in Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002), LPRs are held to a higher standard in this situation since they enjoy rights and privileges not shared by other aliens.
However, it’s not all that bad for LPRs. In Negrete-Ramirez v. Holder, No. 10-71322, slip op. (9th Cir. January 21, 2014), the Ninth Circuit ruled that the aggravated felony bar under INA 212(h) applies only to aliens who were admitted as LPRs but not to those who entered as non-immigrants and later adjust status to LPR. Adjustment is sometimes considered as admission but not in this case. Next time, we’ll examine the concepts of admission and adjustment.
