A three misdemeanor/one felony bar was added for SAWs mid-program, through legislation effective December 18, 1989.[299]  It permitted the government to rescind temporary resident status or deny permanent resident status to SAWs based on such convictions, and made the grounds of exclusion rather than the grounds of deportation the standard of eligibility for permanent residence.  An aggravated felony conviction does not necessarily bar legalization under this program unless it is in fact a felony conviction under the law of the rendering jurisdiction, or otherwise triggers inadmissibility.  A reduction from felony to misdemeanor can therefore avoid this bar.  See § 6.19, infra.  If the conviction is a misdemeanor, it can constitute one of the three misdemeanor convictions required to bar amnesty for SAWs. 

 

A crime of moral turpitude, a drug offense, or any other criminal offense listed as a ground of inadmissibility[300] renders a noncitizen ineligible for legalization as an applicant must not be inadmissible.[301]  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 offense, except a single offense of simple possession of 30 grams or less of marijuana.[302]  There is no reason, however, why a noncitizen subject to the Petty Offense, Youthful Offender or Political Offense exceptions to the CMT inadmissibility ground[303] would be barred from legalization, unless the applicant was convicted of a felony or three misdemeanors. 

 

Any grounds of inadmissibility that arise before automatic adjustment of status under this program may serve as the basis for removal as a noncitizen inadmissible at adjustment.[304]  The automatic adjustment of status is not a new determination of admission, and therefore does not waive a prior conviction.[305]

 

While Immigration Judges and the Board of Immigration Appeals lack jurisdiction to review decisions of the Legalization Appeals Unit (“LAU”) denying applications for temporary resident status under the SAW program where the noncitizen claims that the LAU erred substantively in denying an application, at least one Circuit has held that it has jurisdiction to review these claims.[306]

[299]  The requirement was included in provisions attached to the Immigration Nursing Relief Act of 1989, P.L. No. 101-238, 103 Stat. 2099, § 4.  See discussion in 67 Interpreter Releases 5 (Jan. 1, 1990).

[300] INA § 212(a)(2), 8 U.S.C. § 1182(a)(2).

[301] INA § 210(a)(1)(C), 8 U.S.C. § 1160(a)(1)(C).  But see INA § 210(c)(2)(A), 8 U.S.C. § 1160(c)(2)(A).

[302] INA § 210(c)(2)(B)(ii)(I), 8 U.S.C. § 1160(c)(2)(B)(ii)(I).

[303] See § 2.17(A)(1), supra.

[304] INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).

[305] Perez-Enriquez v. Gonzalez, 411 F.3d 1079 (9th Cir. June 14, 2005).

[306] Perez-Martin v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005).

Second Circuit

RELIEF - AMNESTY - SAW PROGRAM
Francis v. Gonzalez, 442 F.3d 131 (2d Cir. Mar. 27, 2006) (Special Agricultural Workers Program automatically adjusted applicants without regard to admissibility at the time of adjustment).

Ninth Circuit

RELIEF - LEGALIZATION - SPECIAL AGRICULTURAL WORKERS - ADMISSIBILITY DETERMINED AS OF DATE OF ADMISSION FOR LAWFUL TEMPORARY RESIDENCE AND IS NOT REDETERMINED ON DATE OF ADJUSTMENT TO LAWFUL PERMANENT RESIDENT
Perez-Enriquez v. Gonzales, 463 F.3d 1007 (9th Cir. Sept. 15, 2006) (en banc) (admissibility of noncitizen under the Special Agricultural Worker (SAW) legalization program is determined as of the applicant's date of admission for lawful temporary residence, and is not redetermined as of the date of adjustment to lawful permanent residence). http://caselaw.lp.findlaw.com/data2/circs/9th/0370244pv4.pdf