A person who has been convicted of three misdemeanors or one felony is ineligible for temporary or permanent residence through the 1982 legalization program, under the terms of the 1986 IRCA.[293]  An aggravated felony conviction does not necessarily bar amnesty unless it is in fact a felony conviction under the law of the rendering jurisdiction, or triggers inadmissibility.  If it is a misdemeanor, however, it can constitute one of the three misdemeanor convictions required to bar amnesty. 

 

A crime of moral turpitude or drug conviction bars legalization because an applicant must not be subject to any grounds of inadmissibility.[294]  Although a waiver of certain grounds of inadmissibility is built into the legalization portion of the Act, this waiver does not work for convictions of crimes of moral turpitude, or any drug offenses, except a single offense of simple possession of 30 grams or less of marijuana.[295]  There is no reason, however, why a noncitizen subject to the Petty Offense, Youthful Offender or Political Offense exceptions to CMT inadmissibility would be barred from legalization,[296] unless the applicant was convicted of a felony or three misdemeanors.

 

A federal district court judge in California ruled that the INS could not use convictions that occurred before the amendment was enacted on December 18, 1989 as a basis for the one felony/three misdemeanor bar.  He further ruled that the one felony/three misdemeanor rule is not a bar to acquiring temporary residence, but only a basis for termination.  The Ninth Circuit, however, reversed the case on jurisdictional grounds.[297]   The arguments, however, may prevail in another case.

 

Applicants for temporary and permanent residence must not be excludable.   The changes to the exclusion grounds made by the Immigration Act of 1990 apply only to persons who submit applications for permanent residence (i.e., “Phase Two”) in an amnesty program after June 1, 1991.  All SAW applicants and most legalization applicants, therefore, should be subject to the version of the exclusion grounds in effect before the Immigration Act of 1990.  If a temporary resident under the 1982 legalization program commits a deportable offense, his or her temporary status must be terminated before deportation proceedings can be brought.  This is not true for SAW applicants.[298]

[293] See INA § 245A(a)(4)(B), 8 U.S.C. § 1255a(a)(4)(B).  Under IRCA, a felony is defined as a crime punishable by over one year imprisonment, and a misdemeanor as a crime punishable by one year or less, with the following exceptions: (1) a crime punishable by five days or less is an infraction; and (2) if a state designates an offense as a misdemeanor and the sentence actually imposed was one year or less, the offense will be treated as a misdemeanor, regardless of the maximum punishment allowed under state law. A sentence has been imposed where execution of sentence is suspended, but not where imposition of sentence is suspended. See 8 C.F.R. § 245a.1(o), (p) and Comments, published in 53 Fed. Reg. 9,862-4 (Mar. 28, 1988). 

[294] INA § 245a(a)(4)(A), 8 U.S.C. § 1255a(a)(4)(A).

[295] INA § 245a(d)(2)(B)(ii)(I), 8 U.S.C. § 1255a(d)(2)(B)(ii)(I).

[296] See § 2.17(A)(1), supra.

[297]  Naranjo-Aguilera v. INS, Civ. No. CV-S-91-1462 (E.D. Cal. June 30, 1992), digested in 69 Interpreter Releases 1034-36 (Aug. 24, 1992), reversed in Naranjo-Aguilera v. INS, 30 F.3d 1106 (9th Cir. 1994). 

[298]  Matter of Medrano, 20 I. & N. Dec. 216 (BIA 1990, 1991) (legalization); Matter of Juarez, 20 I. & N. Dec. 340 (BIA 1991) (SAW).

Other

RELIEF - LEGALIZATION - AMNESTY
IAP v. INS (now NWIPR v. CIS), Case No. 88-379R (W.D.Wash.) (legalization application period reopened from February 1, 2009 to Jan. 31, 2010 for persons who entered the U.S. on a nonimmigrant visa prior to Jan. 1, 1982 and who lived in the United States at least through 1988 may be eligible).

All the necessary forms and information for those wanting to know about the NWIRP settlement are available for download here: http://sites.google.com/site/nwirpsettlementwiki/

The USCIS announcement link is: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e6984887b936d110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD