The Board of Immigration Appeals (BIA) recently issued an important precedential decision in Matter of J-H-J, 26 I & N Dec. 563 (BIA 2015) that affects individuals who may need to file criminal waivers in order to stay in the United States. This is a notable decision because the Board has retreated from its former position and withdrawn from two previous decisions regarding the same issue.
What is a criminal immigration waiver?
Under the criminal grounds of Immigration And Nationality Act Section 212(a)(2), an individual may deemed inadmissible for having been convicted of certain criminal offenses (or admits committing). A finding of inadmissibility will bar an individual from entering the country as well as disqualify a person from a permanent residence application. Fortunately, the immigration law does provide that certain crimes of moral turpitude may be waived or pardoned under Section 212(h). 212(h) provides, in part:
The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and paragraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession 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 subparagraphs (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,
(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, and
(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 the United States or an alien lawfully admitted for permanent residence if it 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 lawful resident spouse, parent, son, or daughter of such alien; or
(C) the alien is a VAWA self-petitioner; 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 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.
Although the language is very dense, there is something very important to understand. Not everyone will be eligible to file for this waiver. In fact, those who already have permanent resident status have two major restrictions: 1) the green card holder must reside in the US for at least 7 years before proceedings are initiated and 2) the green card holder cannot be convicted of an aggravated felony. The issue is what does it mean for an alien to be "admitted to the United States as an alien lawfully admitted for permanent residence"? Does it mean only somebody who consular processed? Does it include somebody who adjusted status? Or does it mean both?
What does the decision say about 212h?
The decision acknowledges how ambiguous the language in the Act is. At the same time, it notes that nine circuit courts have ruled on this issue, and their decisions conflict with the Board's previous decisions. In light of this, the Board decided to "accede to the clear majority view of the these nine circuits." The upshot is that not every individual with permanent residence who has been convicted of an aggravated felony will be barred from applying for a 212(h) waiver. Only aliens who lawfully entered the United States as permanent residents and thereafter committed an aggravated felony will be barred. In the case at hand, for example, the respondent adjusted his status as opposed to entering the country on an immigrant visa. The court ruled in his favor and remanded the case to the lower court to give the respondent a chance to apply for a 212(h) waiver in conjunction with a new adjustment of status application.
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