By Jonathan D. Montag*


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.


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.
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.
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.

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.

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.

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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