Waivers for Criminal and Non-Criminal Grounds of Removal
Antonio G. Revilla III
12/05/07
CERTAIN WAIVERS FOR CRIMINAL AND NON-CRIMINAL GROUNDS OF REMOVAL
This article will focus on waivers under former section 212(c), sections 212(d)(3), 212(h), and 212(i) of the Immigration and Nationality Act, and recent developments for cancellation of removal for certain permanent residents and nonpermanent residents. The waivers will be analyzed and certain tips and pointers will be provided. This article should be considered a starting point in the representation of individuals convicted of crimes in removal proceedings. Additional research and analysis is always recommended for the practitioner handling these types of cases.
212(c)
A waiver under former section 212(c) of the Immigration and Nationality Act is available to those lawful permanent residents with aggravated felony convictions who pled guilty/nolo contendere or who were convicted after trial prior to April 24, 1996. INS v. St. Cry, 533 U.S. 289 (2001). Whether a waiver is available to an individual availed himself of the right to trial depends on the federal circuit court of appeal with jurisdiction over the court.1 A waiver under 212(c) is available to lawful permanent residents with convictions for crimes involving moral turpitude who pled or went to trial (depending on the circuit court) prior to April 1, 1997.
In jurisdictions where section 212(c) is only available to those individuals who pled to their convictions the argument should still be made that the rationale of reliance on the availability of 212(c) relief should also apply to those who availed themselves of the right to trial. This is a developing area of law and the arguments should be made before the immigration court to preserve the arguments for appeal.
When determining eligibility for section 212(c) relief based on a plea the starting point for the analysis is the date that the plea was agreed to by the individual. 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. The key date is the date that the plea was agreed to by the parties, not necessarily when the criminal judge accepted the plea..
A complete copy of the record of conviction should be obtained to determine the exact date of the plea agreement. Do not rely on the allegation of the conviction in the Notice to Appear for the date of the plea. It is also helpful to contact the criminal defense lawyer and the prosecutor to obtain affidavits as to when the plea was agreed upon. Both parties may have in their notes the date the plea agreement was made. Plea agreements can be made as informally as a quick phone call which is then recorded in the parties= files and subsequently placed on the court=s record at a later date.
Additionally, to be eligible for 212(c) relief the individual must not have been convicted and served more than five years in prison after November 29, 1990. If the individual was convicted before November 29, 1990, and served more than five years after this date he or she is still eligible for 212(c) relief.2 An individual who was convicted after November 29, 1990, is ineligible for 212(c) relief if he has served more than 5 years in prison.
Finally, to be eligible for 212(c) relief when the individual is charged under section 237 or former section 241 the charge of removability or deportability must have a statutory counterpart in section 212.3 An aggravated felony under section 237 may not necessarily have a statutory counterpart in section 212. However; creative arguments can be made for fitting many, if not all, aggravated felonies into the definition of a crime involving moral turpitude in section 212. Alternatively, this could prove to be a double-edged sword when the argument is made that the same crime is not a crime involving moral turpitude when establishing eligibility for a different benefit.
LITIGATING A 212(C) (OR CANCELLATION OF REMOVAL FOR CERTAIN PERMANENT RESIDENTS) CLAIM BEFORE THE IMMIGRATUTION COURT
The primary starting part in litigating a 212(c) claim is becoming familiar with Matter of Marin, 16 I&N Dec. 581 (BIA 1978). In establishing a claim under 212(c) or, for that matter, for cancellation of removal under section 240A(a) the equities need to outweigh the negative factors in the case.
The application for 212(c) relief needs to be supported by documents which establish the equities in the case. This may prove to be one of the more difficult tasks in the preparation of the case. A suggestion is to provide the applicant with a comprehensive list of what documents are generally required to demonstrate the equities. The practitioner should impart to the client the importance of these documents. Some individuals are under the misimpression that they can simply walk into court and ask the Immigration Judge to let them remain in this country because of their length of residence in the country. While length of residence is an equity, the Immigration Judge needs to consider a long list of additional equities.
The next step should be to do a thorough check of the client’s criminal history. When testifying before the Immigration Judge the client needs to be completely honest regarding the number of arrests and convictions. The client needs to understand that the government has access to his or her nationwide and, sometimes, international criminal history whether or not an arrest resulted in a conviction.
Of course, the most glaring negative factor in a 212(c) case will be the conviction at issue. This negative factor needs to be diminished through strong equities. The assumption of responsibility for the crime is considered to be a favorable equity which is considered by the Immigration Judge. Many Immigration Judges consider the first step toward rehabilitation to be taking responsibility for the criminal activity at issue.
The Immigration Court and the Office of the Chief Counsel rely heavily on what is written by the arresting officer in the arrest form, report, or complaint. The arrest form may be very detailed. Any inconsistency between the arrest form and the client=s account of the events may be considered by the Immigration Judge to be an additional negative factor. So, it is important that the client is familiar with what is written in the arrest form.
On the other hand, a client=s account of the events surrounding the charge may be markedly different from what is written in the arrest form. Under these circumstances, and, in fact, under all circumstances, it should be argued that an arrest form is considered one of the most unreliable and untrustworthy forms of hearsay under the Federal Rules of Evidence.4 The argument should be made that the arrest form should not be admitted into evidence because it is being introduced for the truth of the matter asserted as a statement written by an interested and adverse party to the client.
If the client simply cannot live with what is written in the arrest form or the arrest form is written in such an onerous way that the facts of the crime become more harmful to the client=s case than the charge itself, additional steps may need to be taken in the preparation of the case. One step could be to have the client come to terms with the facts in the arrest form, unless they are so onerous that the facts themselves become an additional negative factor that cannot be outweighed by the equities in the case. Under this circumstance, the criminal court file should be carefully examined for any depositions or statements made by any witnesses and/or victims which diminish the negative facts in the arrest form.
212(d)(3)
A 212 (d)(3) waiver is available to a non-immigrant visa holder seeking admission to the United States. It is not available to someone who has engaged in genocide, espionage, sabotage, has sought to overthrow the government by force, or any unlawful activity.
As the BIA decided in Matter of Hranka, 16 I & N Dec. 491, Int. Dec. 2644 (BIA 1978), the factors looked at to determine a 212(d)(3) waiver include the reasons for the applicant=s seeking entry into the U.S., the seriousness of the applicant=s criminal background or violation of immigration law, and the risk of harm to society if the applicant is admitted. The Board held that the factors addressed above need not be “compelling”, as there exists no statutory requirement for someone to present compelling reasons in order for them to enter the United States. Id. at page 492. As such, a balancing of the equities should be employed in assessing the likelihood of success for a 212(d)(3) waiver.
212(h)
A non-lawful permanent resident may seek waivers under section 212(h) for the following:
$ crimes involving moral turpitude;
$ prostitution;
$ commission of more than one crime;
$ crimes where immunity was asserted and;
$ single offense of simple possession of 30 grams or less of marijuana.
It is unavailable for controlled substance and trafficking offenses. Nor is it available for individuals convicted of or who have attempted having admitted to murder or acts involving torture.
If the activity for which the individual is inadmissible is related to prostitution or 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.5 This is a much easier burden of proof than establishing a waiver for criminal activities that occurred within 15 years of application for adjustment. This particular waiver for criminal activities beyond 15 years is easily overlooked. This is why it is particularly important to carefully analyze the record of conviction to ascertain the exact date of criminal activity.
A non-lawful permanent resident whose criminal activities, except prostitution, causing inadmissibility which occurred within 15 years of the application for adjustment may be eligible for a waiver under 212(h)(1)(B) if it is established that the individual=s removal will result in extreme hardship to a spouse, parent, son, or daughter who is a lawful permanent resident or United States citizen.
The regulation found at 8 C.F.R. section 1212.7(c)(9)(d) severely limits the standard of proof for individuals attempting to apply for a 212(h) waiver whose crimes are considered violent or dangerous. If the criminal activity involves violent or dangerous crimes the immigration court will generally not favorably exercise discretion in granting a waiver under 212(h)(2) 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.
This regulation can be subject to challenge in Immigration Court. The starting point for a challenge to this regulation is that there is no statutory or regulatory definition for a violent or dangerous crime. Former Attorney General John Ashcroft promulgated the regulation based on a case where he reversed the decision of the Board of Immigration Appeals in Matter of Jean, 23 I&N Dec. 373 (AG 2002). It was the judgment of the Attorney General in Matter of Jean that where the criminal conduct is as serious as that of the Respondent, where she beat and shook a child to death, the balance of equities will nearly always require a denial of discretionary relief. Matter of Jean at 383. The Attorney General went on to decide that,
It would not be a prudent exercise of the discretion afforded to me by this provision to grant favorable adjustments of status to violent or dangerous individuals except in extraordinary circumstances, such as those involving national or foreign police considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien=s underlying criminal offense, such a showing might still be insufficient.
Id.
The Attorney General did not provide a definition for a violent or dangerous crime or what constitutes such a crime. The closest he came to a definition is the example of the crime in Matter of Jean as a violent or dangerous crime. Therefore, the crime at issue in a section 212(h) case may be subject to divergent interpretations as to whether it is violent or dangerous, especially when compared to the crime in Matter of Jean. A careful analysis of the underlying facts of the crime may be very helpful in arguing that the crime is not violent or dangerous.
Based on the decision in Matter of Jean, the Attorney General proposed a rule which evolved in substantially the same form which is now a federal regulation found at 8 C.F.R. 212.7(c)(9)(d) based on his decision in Matter of Jean. The Attorney General clarified in the language of the proposed rule that the regulation is a Asubstantial general constraint@ on the exercise of discretion. 67 FR 45402 at 10. As a result, it can be argued that the language of the regulation does not mandate that the Immigration Court not favorably exercise discretion absent the extraordinary circumstances. This is arguable from the language in the proposed rule and the premise that the regulation provides that, AThe Attorney General, in general, will not favorably exercise discretion . . .@ This language does not necessarily make it mandatory that the Immigration Court not favorably exercise discretion absent extraordinary circumstances. This language seems to give the Immigration court discretion in whether or not to apply the higher standard of proof.
Lawful permanent residents who qualify for section 212(h) relief can apply for this relief without having to file an application to adjust status. See Yeung v. INS, 76 F. 3rd 337 (11th Cir. 1995). This means that all that is required is the filing of a form I-601. Recently, the Department of Homeland Security has taken the position that the I-601 needs to be filed in conjunction with an application to adjust status. The Department of Homeland Security has even gone as far as appealing grants of 212(h) waivers where the application to adjust status has not been filed. To avoid a lengthy appellate process, especially where the individual is in custody, a practitioner, in an abundance of caution my want to file a form I-485 in conjunction with the I-601.
Aside from not having been convicted of an aggravated felony, a lawful permanent resident applying for a waiver under 212(h) must establish that he or she has Alawfully resided continuously@ for seven years immediately preceding the initiation of removal proceedings.
Section 212(h) of the Act clearly sets forth limitations or restrictions as to the eligibility of lawful permanent residents for a waiver under this section. The limiting provision at issue provides as follows:
No waiver shall be provided 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. (emphasis added).
The Office of the Chief Counsel has traditionally argued that for a lawful permanent resident to be eligible for a waiver under section 212(h) of the Act, the alien needs to have been continuously present for seven years after having been admitted as a lawful permanent resident. This argument or interpretation of the statute is incorrect because it ignores the fact that the provision is written in the disjunctive. There are two distinct limitations to eligibility far a lawful permanent resident under this section.
The first limitation is that a lawful permanent resident is ineligible for a waiver under section 212(h) of the Act if since admission to the United States the alien has been convicted of an aggravated felony. The second and distinct limitation to eligibility is that a lawful permanent resident must have lawfully resided continuously in the United States for seven continuous years preceding the initiation of proceedings.
The Board of Immigration Appeals (“BIA”) agrees that there are in fact two distinct limitations. The BIA, in an unpublished opinion, held that under section 212(h) of the INA, eligibility for the seven years required by the statute can accrue after being admitted in any status. BIA Dec. (10/24/2005); 82 NO. 45 Interpreter Releases 1881. The BIA went on to clarify that the term Asince the date of such admission@ (referring to the admission as an LPR) modifies the first clause relating to the aggravated felony bar and does not modify the second clause relating to the continuous residence requirement. BIA Dec.; 82 NO. 45 Interpreter Releases 1881. Thus, the BIA interpreted the provision at issue to read as follows:
No waiver may be granted to an alien who has previously been admitted to the U.S. as an LPR if either: (1) since the date of such admission, the alien has been convicted of an aggravated felony; or (2) the alien has not lawfully resided continuously in the U.S. for a period of not less than seven years immediately preceding the date of initiation of proceedings.
See 82 No. 45 Interpreter Releases 1881.
The BIA interprets the provision at issue as requiring a lawful permanent resident to have resided continuously for seven years after being admitted in any lawful status. See BIA Dec. The BIA has subsequently reiterated this finding in another unpublished decision, BIA Dec. A45 662 418, finding that an individual has lawfully resided if he not subject to removal as a matter of law during the required time period. This means that the period during a stay of removal or an application which stays removal will count toward the lawfully residing period.
Based on these decisions, some immigration judges have found that a person who originally entered as a parolee meets the continuous residence requirement. This means that an individual who was paroled and subsequently became an LPR would be eligible to apply for a waiver if seven years of continuous residence can be established since the parole up until the initiation of proceedings.
There is no seven years continuous residence stop-time provision for the commission of a crime under section 212(h). The only limitation to the accrual of the seven years is the initiation of removal proceedings.
Additionally, there is no provision in the INA or regulation that precludes the multiple filings of waivers under section 212(h). In other words, an individual can seek 212(h) relief as part of an application to adjust status and subsequently apply for another waiver when he or she becomes inadmissible as a returning lawful permanent resident for another crime.
212(i)
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 USC or LPR. The person must
demonstrate extreme hardship to the USC or LPR spouse or parent. The factors
considered in determining extreme hardship to the qualifying relative include the USC or
LPR=s 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.
The waiver is also available to a self petitioned battered spouse who can also demonstrate
extreme hardship to him/herself or her USC or LPR parent or child.
The 212(i) waiver is unavailable to waive 212(a)(6)(F) arising from a final order under
INA 274C.
CANCELLATION OF REMOVAL FOR CERTAIN PERMANENT RESIDENTS
The BIA, in Matter of Yanez-Garcia, 23 I & N Dec. 390, Int. Dec. 3473 (BIA 2002), held that the determination of whether a state drug offense constitutes a Adrug trafficking crime@ under 18 U.S.C. '924(c)(2), such that it may be considered an aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. '1101(a)(43)(B) (2000), shall be made by reference to decisional authority from the federal circuit courts of appeals, and not by reference to any separate legal standard adopted by the BIA. This created a conflict among the circuits as to simple possession drug crimes being considered aggravated felonies. For example, an individual in the Ninth Circuit convicted of cocaine possession would not be considered an aggravated felon while the same individual in the Eleventh Circuit would be considered an aggravated felon. The result is that in one jurisdiction an individual is eligible for cancellation of removal for certain permanent residents while in another jurisdiction the same individual would be precluded from applying for cancellation of removal as an aggravated felon.
The Supreme Court of the United States recently resolved this conflict in Lopez v. Gonzales, 127 S.Ct. 625 (2006). The Court found that a felony drug crime under state law but a misdemeanor under the Controlled Substances Act (“CSA”) is not a felony punishable under the CSA. The Court reasoned that the only aggravated felony in the INA related to drugs is Aillicit trafficking in a controlled substance@ including a “drug trafficking crime” under 101(a)(43)(B). The Court noted that illicit trafficking is not defined by the Act. Title 18 USC section 924(c)(2) defines Adrug trafficking crime@ to include Aany felony punishable under the CSA.” As a result, the Court looked to the common sense meaning of illicit trafficking and found that simple possession of a controlled substance cannot in any way be considered “illicit trafficking” or a “drug trafficking crime” as a felony punishable under the CSA.
The Supreme Court was Awary@ of the government=s argument that a state conviction classified as a felony should be treated as a felony under the CAS even thought it is treated as a misdemeanor under the CSA. The Court found that a drug crime punishable as a felony under the CSA has to conform with the definition of illicit trafficking. The Court analogized “trafficking” with the word commerce as normally used in the English language. Finding that commerce is not an element of simple possession of a controlled substance, the court found that simple possession is not an aggravated felony under 101(a)(43)(B) as “illicit trafficking” or a “drug trafficking crime.”
The consequence of this decision is paramount. Now those individuals convicted of simple possession of a controlled substance, such as cocaine, who otherwise meet the eligibility requirements for cancellation of removal for certain permanent residents can now apply for this form of relief because such a crime is no longer an aggravated felony.
CANCELLATION OF REMOVAL FOR CERTAIN NONPERMANENT RESIDENTS UNDER SECTION 240A(b)(1) OF THE ACT
A person qualifies for cancellation of removal under section 240A(b) if she is in removal proceedings because she is inadmissible or deportable and (1) has been physically present in the U.S. continuously for ten years; (2) has had good moral character for that time; (3) has not been convicted of certain offenses listed in sections 212(a)(2), 237(a)(2), or 237(a)(3) and (4) to deport her would cause exceptional and extremely unusual hardship to her lawful permanent resident or U.S. citizen spouse, parent or child.
10 YEARS OF PHYSICAL PRESENCE IN THE US
The applicant must have 10 years of continuous physical presence before the Notice to Appear is served to the applicant. Section 240A(d)(1). The ten year Aclock@ also stops when the person commits certain enumerated crimes under sections 212(a)(2), 237(a)(2), or 237(a)(3).
Consider whether the individual comes within the criminal bars listed above. If so, consider whether the person can establish good moral character. If the person can pass both tests, then you need to consider the clock stopping rule.
Further, the applicant need not show that she never left the U.S. for purposes of establishing continuous physical presence, so long as the absence from the U.S. during the ten year period was less than ninety days or the total time outside the U.S. was less than 180 days. Section 240A(d)(2).
CRIMINAL BARS
Under section 240A(b)(1), a person is barred from applying for cancellation if they have been convicted of an offense under '' 212(a)(2), 237(a)(2), or 237(a)(3). The crimes include a crime involving moral turpitude, a controlled substance offense, an aggravated felony, high speed flight from immigration checkpoint, firearms offenses, domestic violence related offenses, to name just a few.
GOOD MORAL CHARACTER
Under '101(f), a person is automatically prevented from establishing Good Moral Character (>GMC=), including conviction or admission of a drug offense, except a single conviction of less than 30 grams of marijuana, reason to believe the person is a drug trafficker, conviction or admission of a crime involving moral turpitude, alien smuggling, engaging in prostitution, habitual drunkard, providing false testimony in order to acquire an immigration benefit, murder, conviction of an aggravated felony after November 29, 1990, etc. Letters from co-workers, supervisors, school personnel, religious personnel, and others that have been enriched by the applicant=s activities should be gathered and submitted to the Immigration Judge.
EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP
Assuming all other elements have been satisfied, and assuming a Aqualifying relative@ exists, demonstrating exceptional and extremely unusual hardship to the applicant=s lawful permanent resident or U.S. citizen spouse, parent or child will in most cases be the largest hurdle.
The concept Aexceptional and extremely unusual hardship@ continues to evolve. In one of it=s early cases, the BIA, in denying cancellation of removal to the applicant in In Re Francisco Javier Monreal-Aguinaga, 23 I & N Dec. 56 (BIA 2001), looked at factors such as the applicant having elderly parents whose support is solely provided by the applicant, compelling health or special needs of the qualifying child, and the effects that relocation to a country with a lower standard of living or civil strife has on a USC or LPR family member.
Later, in In Re Martha Andazola-Rivas, 23 I & N Dec. 319 (BIA 2002), the BIA expanded it=s definition of hardship. It held that the hardship to the qualifying relative must be Asubstantially different@ that would otherwise be expected as a result of being deported to a lesser developed country. In the same year, the BIA, in Matter of Recinas, 23 I & N Dec. 467 (BIA 2002), granted cancellation of removal to Ms. Recinas, a single mother of 4 US citizen children. They found that the children would suffer exceptional and extremely unusual hardship if she was returned to Mexico, since they knew of no other way of life outside of the U.S., they did not speak, read or write Spanish at all, were financially, emotionally and otherwise totally dependent on their mother, the mother did not have any family members in Mexico to care for the children, the increased level of difficulty for a single woman in Mexico to find work and a home that would allow her to provide a supportive home, the strong family support and the ties with the children and their grandparents (who lawfully reside in the U.S.) and the unlikely scenario that any other family members would return to Mexico with Ms. Recinas, and the fact that, despite having USC siblings and LPR parents, the mother has no other realistic way of immigrating to the U.S., since the waiting lists are long.
There is no one factor that is more compelling than the other. However, the BIA has taken a “totality of the circumstances” approach in assessing what is exceptional and extremely unusual hardship. Taking a creative stance on the type and degree of hardship can only serve to push the envelope in trying a successful case for cancellation of removal.
CONCLUSION
In the representation of clients in removal proceedings especially those with criminal convictions, the foregoing waivers should be carefully analyzed to determine eligibility. As part of this analysis, the full record of the immigration violation, conviction, or convictions at issue should be obtained and carefully scrutinized. The creativity in presenting an individual’s claim before the Immigration Court is limitless. The consequences for having a waiver denied are grave. So the preparation of these cases should not be taken lightly.
