Waivers for
Criminal and Non-Criminal Grounds of Removal
Antonio G.
Revilla III
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 clients 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 individuals 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.
ANTONIO G. REVILLA III is a
"Former US Immigration Prosecutor " Immigration
Lawyer Miami, Deportation Defense
The Miami immigration lawyers
at Revilla Law Firm, P.A., in Miami, Florida, represent clients throughout the
state of Florida, including Aventura, Boca Raton, Bradenton, Clearwater, Coral
Gables, Coral Springs, Fort Lauderdale, Fort Myers, Fort Pierce, Hialeah,
Hollywood, Key West, Lake Worth, Melbourne, Miami, Miami Beach, Naples,
Orlando, Palm Beach, Palm Springs, Pompano Beach, Sarasota, St. Petersburg,
Sebring, Tampa, Titusville, Vero Beach, and Brevard County, Broward County,
Collier County, Highlands County, Hillsborough County, Indian River County, Lee
County, Manatee County, Martin County, Miami-Dade County, Monroe County, Orange
County, Palm Beach County, Pinellas County, St. Lucie County, and including the
Lake Okeechobee area, FL.
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