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INA
§212(h): A WAIVER CHIEFLY FOR ASPIRING AND RE ASPIRING
PERMANENT RESIDENTS
By
Jonathan D. Montag*
INTRODUCTION
In
the immigration lawyer's toolbox are several statutes
that are useful to excuse prior conduct. Some are used
so often that most practitioners are comfortable with
them and the situations where they can be used. Other
tools are more obscure and are taken out of the toolbox
rather infrequently. One such waiver is found at INA
§212(h)*1.
The waiver's usefulness in the adjustment of status
and consular processing context is rather well known.
The §212(h) waiver's usefulness in other contexts
may be less known. It behooves immigration practitio-ners
to become familiar with the full range of use of the
§212(h) waiver tool to best represent our clients
and to solve problems where no other tool can reach.
TO WHAT GROUNDS OF INADMISSIBILITY DOES THE STATUTE
APPLY?
On its face, INA §212(h) applies to aliens subject
to the grounds of inadmissibility at INA §212(a)(2)(A)(i)(I),
a crime of moral turpitude; §212(a)(2)(B), multiple
criminal convictions relating to aliens convicted of
two or more offenses for which the aggregate sentences
of confinement were five years or more; §212(a)(2)(D),
prostitution and commercial vice; §212(a)(2)(E),
aliens who were immunized from prosecution for certain
serious criminal offenses and then departed the United
States; and §212(a)(2)(A)(i)(II), conviction or
ad-mission of a controlled substance insofar as it relates
to a single offense of simple possession of 30 grams
(1.057 ounces) or less of marijuana.
Aliens Subject
to Grounds of Inadmissibility
There are three principal groups of aliens who
are subject to the grounds of inadmissibility. First
are aliens applying for immigrant visas at U.S. consulates
and aliens seeking to adjust status at INS districts.
Second are aliens who are in removal proceedings who
are either arriving aliens, which is defined at 8 CFR
§1.1(q),*2
or aliens who have not been inspected and admitted.
Third are aliens in removal proceedings subject to INA
§237 grounds of deportability who are seeking to
adjust status in immigration court.
Aliens Immigrating or Adjusting Status
This is the category of aliens for which the
waiver most straightforwardly applies. At a consular
interview at a U.S. consulate abroad or at an adjustment
of status interview at an INS office, the examiner determines
if a ground of inadmissibility applies. If one of the
enumerated grounds apply, the waiver may be in order.
Aliens In Proceedings
Who Are Arriving Aliens and Aliens Who Have Not Been
Inspected and Admitted
Despite the much heralded innovation in the
IIRAIRA*3
that the former separate exclusion and deportation proceedings
prior to April 1, 1997, have been unified into removal
proceedings, there are still two separate sets of grounds
to remove aliens. Those found at INA §212 are the
grounds to remove aliens based on their inadmissibility
(excludability) and those found at INA §237 are
the grounds to remove aliens based on their deportability.
The waiver applies to those who are subject to the inadmissibility
grounds and not the deportability*4
grounds.
On its face it may seem arbitrary that aliens subject
to the §237 list of deportable offenses cannot
receive a waiver while aliens subject to the §212
list can. Some may recall an analogous controversy over
the former, and now partially resurrected, INA §212(c),
wherein aliens in exclusion proceedings could seek the
relief while aliens in deportation proceedings could
not. Constitutional attack on this equal protection
problem resulted in the Board of Immigration Appeals'
permitting deportable aliens to seek §212(c) relief
if their ground of deportability was analogous to a
ground of excludability.*5
In
fact, citing to this issue, the Eleventh Circuit Court
of Appeals found the unavailability of §212(h)
relief to deportable aliens to be violative of the equal
protection clause in Yeung v. INS.*6
Remarkably, to date the Eleventh Circuit is the only
Court of Appeals to rule on this issue. While it is
unclear whether an alien will ultimately be successful,
an attorney should most certainly seek §212(h)
relief for an alien subject to grounds of deportability
if a case warrants it and make the equal protection
arguments as in Yeung.
Aliens Seeking
Adjustment of Status
in Removal Proceedings
An alien in removal proceedings can seek to
adjust status even if he is already a permanent resident.
When adjusting, the immigration judge looks at the §212
list rather than the §237 list, even though the
alien may be charged with removability in the Notice
to Appear under the §237 list. In such a case,
a §212(h) waiver can be sought to overcome a ground
of inadmissibility. As an example, suppose a young woman
has been studying with a student visa in the United
States for four years. She then marries a United States
citizen and adjusts status to that of a lawful permanent
resident (LPR) as the spouse of a U.S. citizen. A year
later she is convicted of a battery against him. She
is sentenced to seven months imprisonment (though she
in reality serves no time). The woman is deportable
for a crime of domestic violence and the INS commences
removal proceedings three years later. Notwithstanding
the conviction, assume further that the relationship
is a healthy one. To ward off removal, the woman can
seek adjustment of status. She would be subject, not
to the INA §237(a)(2)(E) domestic violence ground
of deportability, but rather the INA §212(a)(2)(A)(i)(I)*7
ground of having committed a crime of moral turpitude-one
of the grounds §212(h) covers. She could seek this
waiver and receive a new grant of permanent residence.
Who Can Seek the Relief?
In addition to having to be subject to one of the
enumerated grounds of inadmissibility, there are other
criteria that must be met to be eligible for relief.
For the prostitution and commercialized vice grounds
of inadmissibility at INA §212(a)(2)(D)(i) and
(ii) (has been or has procured prostitution within the
past ten years), the waiver is available, according
to §212(h)(1)(A)(i), for acts that occurred more
than 15 years before the alien's application for admission,
adjustment, or a visa. Because the inadmissibility ground
applies only to acts of prostitution or procur-ing within
the past ten years, it is unclear when the waiver would
be needed. The waiver is available to an alien subject
to the enumerated grounds of inadmissibility only if
the alien is the spouse, parent, son, or daughter of
a U.S. citizen or LPR and denial of admission would
cause extreme hardship to the citizen or resident spouse,
parent, son, or daughter.*8
Finally,
independent of the extreme hardship to qualified relatives
just mentioned, the waiver is available to battered
spouses and children permitted to immigrate or adjust
status under the battered spouse and children provisions
of the law.*9
Aliens
Ineligible for Relief
The statute states that the following cannot seek relief:
- Aliens
convicted of or admit that they have committed or
conspired to murder or torture.
- An
alien admitted for permanent residence if since the
date of such admission the alien has been convicted
of an aggravated felony.
- An
alien admitted for permanent residence if 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.
The
latter two bases of ineligibility are reminiscent of
the bars to Cancellation of Removal for Certain Permanent
Residents found at INA §240A(a) (hereinafter, §240A(a)
Cancellation). Congress may have included these two
bases of ineligibility to head off permanent residents'
obtaining relief through §212(h) when §240A(a)
Cancellation relief was unavailable. It is significant
that the stop-time provisions at INA §240A(d) are
not fully tracked in §212(h), so there could be
a situation where an alien would be barred from §240A(a)
relief because of the stop-time provisions, but not
§212(h) relief. The stop-time provision that applies
to §240A(a) Cancellation stops the accrual of time
after commission of certain removable acts. There is
nothing like this in the §212(h) statute, while
the other stop-time provision, the stopping of time
after the initiation of proceedings also appears in
the §212(h) statute. Also, important to note is
that §212(h) for a permanent resident requires
seven years of lawful residence, while §240A(a)
Cancellation requires seven years of residence after
a lawful admission, whether the residence subsequent
to the lawful admission is legal or not. Eligibility
for §240A(a) Cancellation also requires five years
of permanent residence. The accrual of the five years
of permanent residence is not subject to stop time provisions
at all, though a final administrative order does stop
accrual of the five years of permanent residence.
On its face the bar to §212(h) relief to permanent
residents with aggravated felony convictions or less
than seven years of lawful residence raises an interesting
equal protection issue. It seems constitutionally suspect
that aliens first seeking permanent residence, sometimes
without ever having set foot in the United States, are
eligible for a §212(h) waiver while aliens who
are permanent residents, and conceivably have developed
closer and deeper ties to the United States, often cannot
seek this relief even when facing the same ground of
inadmissibility. Several circuit courts have decided
that there is no equal protection problem significant
enough to void the restriction. Using the rational basis
test, courts have concluded that it is rational for
Congress to give an alien one bite at the permanent
residence apple, and once they blow it (through committing
a removable offense), Congress's interest in having
them removed expeditiously is a rational reason to treat
them differently than aliens who have never had permanent
residence. Another explanation for permitting the anomaly
is that Congress can rationally impose a higher standard
of conduct on a permanent resident, reasoning that with
permanent residence comes added responsibilities. Another
rationale is that similarly situated non-permanent residents
can receive a waiver because Congress's barring permanent
residents from relief is just the first step in a remedial
scheme to bar relief to criminals and Congress should
not be thwarted from making small steps toward its ultimate
goal. The circuit court
cases rejecting the equal protection argument are Umanzor-Lazo
v. INS,*10
Lara-Ruiz
v. INS,*11
Lukowski v. INS,*12
Finau v. INS,*13
and Moore v. Ashcroft.*14
The bar to aggravated felons receiving a §212(h)
waiver applies when an alien who has been admitted as
a permanent resident commits this crime "since
the date of such admission." There are some who
argue that the words "since the date of such admission"
implies that the crime bars relief if the crime is committed
after the first admission as an LPR and that the bar
does not survive if there is a subsequent admission.
According to the Board of Immigration Appeals, a permanent
resident's entries into the United States after having
committed an offense identified in section §212(a)(2)
make that entry an admission.*15
Thus, an alien who departs and reenters with inspection
after having committed a removable offense, has made
an admission. The alien conse-quently has a subsequent
admission and the bar of §212(h) to those who have
committed a crime since their initial admission as an
LPR does not apply. It remains to be seen whether the
BIA or any federal court adopts this interpretation.
It should also be noted that while an aggravated felony
at any time, even before one becomes a per-manent resident,
bars §240A(a) Cancellation, the aggravated felony
bar for §212(h) only applies to aggravated felonies
since admission for permanent residence. Thus, a person
who has committed an aggravated felony before receiving
a permanent residence visa can receive a §212(h)
waiver.
WHEN WILL §212(H) RELIEF
BE USEFUL IN REMOVAL PROCEEDINGS?
INA §212(h) relief may seem obscure to even
seasoned immigration practitioners. One seldom hears
of an alien seeking it in run-of-the mill re-moval proceedings.
The simple reason is that it reaches far fewer cases
than the workhorse relief statutes, §212(c) and
§240A(a) Cancellation.
Firstly, this is because the waiver applies to few grounds
of removability. It cannot be used for drug crimes except
for a single crime involving 30 grams or less of marijuana.
An alien cannot waive inadmis-sibility for any other
standardly abused drugs for which there is a conviction
or admitted abuse. Except in the 11th Circuit where
Yeung, supra, is followed, §212(h) does
not apply in INA §237 cases. Thus, aliens admitted
to the United States cannot use the waiver. Also it
is seldom that cases involving prostitution, commercial
vice, multiple criminal conviction, and immunity recipient
grounds of in-admissibility are encountered.
An alien in removal proceedings can most often benefit
from §212(h) when seeking to adjust status in court.
This switches the alien from the §237 list to the
§212 list where he can benefit from the waiver.
A permanent resident may not seek the waiver unless
he or she meets the seven-year requirement and has not
become an aggravated felon since re-ceiving permanent
resident status. The alien still needs a visa and while
the §212(h) waiver may waive a crime problem, without
a having a visa immediately available, the waiver is
meaningless.
Hypothetically, there could be a situation where a permanent
resident is barred from Cancellation of Removal relief
because of stop-time problems, but has accrued the seven
years for §212(h). If he is an arriving alien with
past moral turpitude crimes, he may then be able to
benefit from §212(h) even with-out adjusting status
when §240A(a) Cancellation is unavailable to him,
or even if not an arriving alien, should Yeung
apply.
Potentially, a §212(h) waiver may be of use when
another form of relief has already been granted. Ac-cording
to INA §240A(c)(6), §240A(a) Cancellation
shall not apply to:
An alien whose removal has previously been cancelled
under this section or whose deportation was suspended
under section 244(a) or who has been granted relief
under section 212(c), as such sections were in effect
before the date of the en-actment of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996. (Empha-sis
added).
Should an alien have received §212(c) or suspen-sion
in the past and needs a waiver for an action covered
under §212(h) and §240A(a) Cancellation, using
§212(h), perhaps through an adjustment of status,
may be the only way to avoid removal. It should also
be noted that after St. Cyr, an alien may be eligible
for §212(c) for an old conviction and also have
committed a §212(h)-waivable and §240A(a)-waivable
act after April 24, 1996. While on its face, the Act
at INA §240A(c)(6) bars §240A Cancellation
relief after a §212(c) grant but does not bar concurrent
grants, should the BIA and courts decide that concurrent
grants of §212(c) and §240A(a) Cancellation
are not permitted, a concurrent §212(h) grant should
be permitted
Because of the advantage that a §212(h) waiver
can be obtained after a Cancellation of Removal waiver
and can be obtained more than once, there is a certain
advantage to seeking §212(h) instead of §240(a)
Cancellation, if one can. However, inas-much as most
§212(h) cases involve adjustment of status that
requires obtaining an I-130 approval, one needs to overcome
the hurdle of getting an I-130 approved first. It may
be difficult to convince an immigration judge to continue
a proceeding to get an I-130 approved so an alien can
adjust status and re-ceive a §212(h) waiver rather
than simply going forward with §240A(a) Cancellation
and consequently using up the client's one lifetime
opportunity to seek a §240A(a) Cancellation waiver.
OBTAINING THE
WAIVER
Up until now, the discussion has focused on eligibility
for a waiver. Of course, being eligible does not imply
that one is deserving of a waiver, i.e., that an Immigration
Judge or INS adjudicator will grant the waiver. To earn
the waiver, except for the 15-year requirements for
the prostitution and commercialized vice ground, an
alien must demonstrate extreme hardship to his U.S.
citizen or LPR spouse, parent, son, or daughter. It
is noteworthy that the relatives that must suffer extreme
hardship include "sons or daughters," and
not "children" as in Cancellation of Removal
for Certain Non-Permanent Residents, found at INA §240A(b).
This broadens the class to sons and daughters over the
age of 21, as children are by definition under 21 years
of age. INA §101(b)(1). A §212(h) waiver is
a discretionary waiver, which means even if extreme
hardship is demonstrated, relief can still be denied
as a matter of discretion.
The lead case discussing the standard for relief is
Matter of Mendez-Moralez.*16
The case addresses the discretion aspect of the case.
It adopts the balancing of equities test of Matter
of Marin,*17
the balancing test used in §212(c) and §240A(a)
Cancellation. The BIA noted that the requirements of
permanent residence and residence of long duration should
not apply and that the hardship to spouse, parent, son,
or daughter necessarily applies, because it is an ele-ment
of the relief. The case hinged on remorse and rehabilitation
with the BIA finding that without re-morse and admissions
of guilt, the alien being a sex offender, it would not
grant the waiver. In a dissent, Board Member Lory D.
Rosenberg criticized the majority's decision for putting
too much emphasis on the Marin factors when the
key element of the relief is the hardship to the close
family members. She also criticized the majority's emphasis
on admissions of guilt as an important indicator of
rehabilitation and reliance on rehabilitation demonstrated
by admission as a key element needed for relief. After
Mendez-Moralez, it is clear that to win a waiver,
discretion would be an important hurdle and not an afterthought
once extreme hardship was demonstrated.
The other issue, extreme hardship to the relevant family
members, was addressed by the BIA in Matter of Cervantes-Gonzalez.*18
This case is not a §212(h) case, but rather a §212(i)
case. Nonetheless, because of the same requirement of
extreme hardship, the case is instructive. It is worthy
of note that, unlike the §212(h) waiver, for a
§212(i) waiver the hardships of sons and daughters
of the alien are not considered. Only the hardships
to the citizen or permanent resident spouse or parent*19
are considered. Hardship factors considered in determining
whether an alien has established extreme hardship pursuant
to section §212(i) of the Act include, but are
not limited to, the following:
- the
presence of lawful permanent resident or U.S. citizen
family ties to this country;
- the qualifying relative's family ties outside
the United States;
- the conditions in the country or countries
to which the qualifying relative would relocate;
- the extent of the qualifying relative's ties
to such countries;
- the financial impact of departure from this
country;
- significant conditions of health, particularly
when tied to the unavailability of suitable medical
care in the country to which the qualifying relative
would relocate.
CONCLUSION
Depending on the facts of a case, §212(h) may
be the perfect tool. When you have an adjustment of
status case or immigrant visa case and a prior criminal
act, §212(h) is the most useful tool. It can be
used for permanent residents in removal proceedings,
but applies to far fewer removable acts than Cancellation
of Removal for Certain Permanent Residents. Except in
the 11th Circuit, it does not apply to aliens facing
grounds of deportation. Like Cancellation, it cannot
cure a permanent resident's aggravated felony grounds
of removability. In those cases where it can be used,
its advantages over Cancellation of Removal are that
the stop-time provision stopping the accrual of lawful
residence by the commission of certain removable acts
does not apply and there is no limit on the number of
times it can be granted. Also, unlike §240A(a)
Cancellation, aggravated felony convictions before receiving
an immigrant visa do not bar relief. Once eligibility
is established, deservedness for relief requires showing
extreme hardship to a U.S. citizen or LPR spouse, parent,
son, or daughter, and additionally, the showing that
the alien merits relief as a matter of discretion. In
a period when there are fewer and fewer forms of relief
available to aliens, employing the full range of the
available tools, like §212(h), is more and more
imperative.
- Jonathan
D. Montag has been practicing immigra-tion law in
San Diego since 1994. He graduated the University
of San Diego School of Law in 1994. Mr. Montag was
the Vice Chapter Chair of the AILA San Diego chapter
in 1999-2000, and will be the chapter's treasurer
in 2002-03. He served as the editor-in-chief of AILA's
12th Annual California Chapters Conference, and has
written and lectured extensively on immigration law
topics.
- Reprinted
with permission from Immigration & Nationality
Law Handbook (2002-03 ed.). Copy-right (c) 2002, American
Immigration Lawyers As-sociation Back
to Top
*1
INA §212(h) provides as follows: The Attorney General
may, in his discretion, waive the application of subparagraphs
(A)(i)(I), (B), (D), and (E) of subsection (a)(2) and
subparagraph (A)(i)(II) of such subsection insofar as
it relates to a single offense of simple posses-sion
of 30 grams or less of marijuana if- (1)(A) in the case
of any immigrant it is established to the satisfaction
of the Attorney General that- (i) the alien is inadmissible
only under subparagraph (D)(i) or (D)(ii) of such subsection
or the activities for which the alien is inadmissible
occurred more than 15 years before the date of the alien's
application for a visa, admission, or adjustment of
status, and (ii) the admission to the United States
of such alien would not be contrary to the national
welfare, safety, or security of the United States, (iii)
the alien has been rehabilitated; or (B) in the case
of an immigrant who is the spouse, parent, son, or daughter
of a citizen of he United States or an alien lawfully
admitted for permanent residence if it is established
to the satisfaction of the Attorney General that the
alien's denial of admission would result in extreme
hardship to the United States citizen or lawfully resident
spouse, parent, son, or daughter of such alien; or (C)
the alien qualifies for classification under clause
(iii) or (iv) of section 204(a)(1)(A) or classi-fication
under clause (ii) or (iii) of section 204(a)(1)(B);
and (2) the Attorney General, in his discretion, and
pursuant to such terms, conditions and procedures as
he may by regulations prescribe, has consented to the
alien's applying or reapplying for a visa, for admission
to the United States, or adjustment of status. No waiver
shall be provided under this subsection in the case
of an alien who has been convicted of (or who has admitted
committing acts that constitute) murder or criminal
acts involving torture, or an attempt or conspiracy
to commit murder or a criminal act involving torture.
No waiver shall be granted 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.
No court shall have jurisdiction to review a decision
of the Attorney General to grant or deny a waiver under
this subsection. Back to Top
*2
The term arriving alien means an applicant for admission
coming or attempting to come into the United States
at a port-of-entry, or an alien seeking transit through
the United States at a port-of-entry, or an alien
interdicted in international or United States waters
and brought into the United States by any means, whether
or not to a designated port-of-entry, and regardless
of the means of transport. An arriving alien remains
such even if paroled pursuant to section 212(d)(5)
of the Act, except that an alien who was paroled before
April 1, 1997, or an alien who was granted advance
parole which the alien applied for and obtained in
the United States prior to the alien's departure from
and return to the United States, shall not be considered
an arriving alien for purposes of section 235(b)(1)(A)(i)
of the Act. Back to
Top
*3
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 ("IIRAIRA"), Pub.L. 104-208,
110 Stat. 3009 (1996). Back
to Top
*4
INA §237(a) refers to aliens who have been admitted
to the United States who are in removal proceedings
as "deportable aliens," so use of the word
"deportable" should not be felt obsolete
after April 1, 1997. Back
to Top
*5
Matter of Silva, 16 I&N Dec. 26 (BIA 1976). Back
to Top
*6
76 F.3d 337 (11th Cir. 1995). Back
to Top
*7
The seven-month sentence takes the woman out of being
subject to the petty crime exception of INA �212(a)(2)(A)(ii),
which would have made it unnecessary to seek a �212(h)
waiver at all. Be aware, however, that ad-justment
of status is discretionary and even when no waiver
is necessary and no grounds of inadmissibility exist,
an im-migration judge can deny adjustment of status.
Back to Top
*8
INA �212(h)(1)(B). Back
to Top
*9
See INA �212(h)(1)(C). Back
to Top
*10
See INA §212(h)(1)(C). 178 F.3d 1286 (4th Cir.
1999) (unpublished decision up-holding statute in
summary fashion). Back
to Top
*11 241 F.3d 934, 947
(7th Cir. 2001). Back to
Top
*12 279 F.3d 644
(8th Cir. 2002). Back to
Top
*13 270 F.3d 859
(9th Cir. 2001) (opinion subsequently with-drawn).
Back to Top
*14 251 F.3d 919
(11th Cir. 2001). Back
to Top
*15 See Matter
of Collado-Munoz, Int. Dec. 3333 (BIA 1998). Back
to Top
*16
Int. Dec. 3272 (BIA 1996). Back
to Top
*17 16 I&N Dec.
581 (BIA 1978). Back
to Top
*18 Int. Dec. 3380
(BIA 1999). Back
to Top
*19 In the case
of battered spouses, hardship extends to children.
Back to Top
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