Waivers As A Defense To Deportation During A Removal Proceeding
Wilson Law Group was founded in Minneapolis in 2003 to offer creative and innovative immigration strategies for noncitizens and foreign nationals. If you are facing deportation, our deportation defense attorneys will fiercely defend your rights and freedom. Using various applicable immigration laws and regulations, they may be able to argue that you are eligible for an immigration waiver.
212(k) Waivers For Certain Inadmissible Persons
A waiver under section 212(k) of the Immigration and Nationality Act is an extremely important waiver. When a noncitizen is inadmissible for being an immigrant who is not in possession of a valid immigrant visa or entry document at the time of application for admission this waiver defense may be applicable.
A foreign national may be eligible for a 212(k) waiver if it is demonstrated that he or she is otherwise admissible and did not know – or could not have known – that he or she was not in possession of a valid entry document before departure from the last port of entry outside of the United States.
212(h) Waivers For Certain Crimes And Other Provisions
Applicants for adjustment of status often have grounds of inadmissibility that need to be waived before their applications can be approved. This includes inadmissibility resulting from convictions for (or in some cases admitting to committing) certain crimes.
Waivers under 212(h) of the Immigration & Nationality Act waive select grounds of inadmissibility, which include crimes of moral turpitude, prostitution and commercialized vice, and, assertion of diplomatic immunity. A 212(h) waiver does not waive drug crimes except for a single offense of possession of thirty grams or less of marijuana.
A waiver of inadmissibility may also be needed even where there was no conviction for a crime involving moral turpitude (CIMT). Rather, inadmissibility can be found under this ground by merely admitted to having committed a crime involving moral turpitude or admitting to committing acts which constitute the essential elements of a CIMT.
There are various eligibility requirements for a 212(h) waiver. Even if these requirements are met, however, the waiver is discretionary.
237(a)(1)(H) Waivers For Certain Misrepresentations
A 237(a)(1)(H) waiver is an important waiver available to foreign nationals who were admitted to the United States through fraud or misrepresentation. The waiver is available to individuals who are in removal proceedings before the immigration court and were admitted to the United States.
To be eligible for this waiver, an applicant must show that they were in possession of an immigrant visa or similar document and are admissible to the United States except for the ground of inadmissibility stemming directly from the fraud. The 237(a)(1)(H) waiver is discretionary.
212(c) Relief For Lawful Permanent Residents
212(c) is a type of relief available to certain lawful permanent residents who are in removal or deportation proceedings. This type of relief is very specific, and is only available to persons who meet very limited eligibility requirements.
212(c) relief is the pre-cursor to its modern-day equivalent of cancellation of removal for lawful permanent residents (LPR Cancellation). The relief is intended for lawful permanent residents who are removable or deportable from the U.S., usually after the commission of a certain type of crime. The requirements for 212(c) relief are somewhat easier to meet than those for LPR cancellation of removal. Congress eliminated 212(c) relief in 1996 and replaced it with LPR cancellation of removal. However, in certain limited circumstances, persons in removal proceedings may still be eligible to apply for relief under the earlier provisions of 212(c).
Individuals granted 212(c) relief are allowed to retain their permanent resident status in the United States.
Eligibility Requirements For 212(c) Relief
To be eligible for 212(c) relief, applicants must meet the following criteria:
- They are in removal or deportation proceedings.
- They have held lawful permanent resident status for at least 7 years before applying for relief.
- They are removable or deportable because of a criminal conviction which they pled guilty or nolo contendere to prior to April 1, 1997.
- At the time of their criminal plea, they were eligible to seek a 212(c) waiver.
- If they were convicted of an aggravated felony, they served less than 5 years for the crime.
- If they served 5 years or more for the removable or deportable crime, they pled guilty on or before November 29, 1990.
- If their criminal plea occurred between April 24, 1996, and April 1, 1997, they were not convicted of an aggravated felony, a controlled substance offense, espionage, treason, or two or more crimes involving moral turpitude.
Applicants are specifically barred from seeking 212(c) relief in the following situations:
- They have been deported or are currently outside the U.S.
- They illegally re-entered the U.S. after being deported.
- They were previously denied 212(c) relief.
If an applicant meets the statutory requirements to seek 212(c) relief, their case will be adjudicated under a discretionary balancing test of negative and positive factors.
Factors In Granting Relief Under 212(c)
Negative factors include the nature of the underlying ground of removal, existence of other crimes, the presence of significant immigration violations, and the nature and seriousness of such offenses.
Positive factors include family ties to the U.S., residence of long duration in the U.S., hardship to the applicant or his family if relief were denied, service in the U.S. Armed Forces, property or business ties in the U.S., community service, and rehabilitation from past criminal offenses.
A Corresponding Ground of Inadmissibility
Previously, the 212(c) regulations also required that the ground of deportability under which the applicant was being charged, also had a corresponding ground of inadmissibility in order for the applicant to be eligible for 212(c) relief. This regulation caused many potential applicants to be ineligible for relief, since the criminal grounds of removal and inadmissibility are different.
This regulation was struck down, however, by the U.S. Supreme Court in Judulang v. Holder, 565 U.S. (2011) in 2011. The Supreme Court found that the “comparable grounds” test was arbitrary and capricious, and is no longer a requirement for 212(c) relief.
Consult With An Immigration Attorney For Free
Our knowledgeable and experienced immigration attorneys at Wilson Law Group offer a free initial consultation and case evaluation. To schedule your free appointment, call our office at 612-430-8022 or send us an email through our website. We look forward to telling you more about how we can help you with your case.