Aggravated Felonies

(I)  Can a § 212(c) Waiver be Combined with Another Form of Relief?  Noncitizens in removal proceedings are allowed to make multiple applications for relief, in combination, in order to avoid removal.  A common example is an application for adjustment of status in combination with an application for a waiver of inadmissibility under INA § 212(h), in order to avoid deportation.[577]  The same may be done with an application for a § 212(c) waiver.[578]

            However, a noncitizen cannot apply for § 212(c) relief in conjunction with an application for cancellation of removal if any of the convictions sought to be waived is an aggravated felony.  Under Gabryelski,[579] combination grants of relief are not simultaneous.  They only happen to be made during the same proceeding.  Because an applicant is ineligible for cancellation if s/he has already received § 212(c) relief, the cancellation application must be considered first.  However, the cancellation application is barred if the applicant has an aggravated felony. [580]

[577] See Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993).

[578] See Matter of Azurin, 23 I. & N. Dec. 695 (BIA Mar. 9, 2005) (application for adjustment of status combined with § 212(c) waiver allowed to waive non-analogous aggravated felony offense to avoid aggravated felony ground of deportation).

[579] Matter of Gabryelsky, 20 I. & N. Dec. 750, 755 n.3 (BIA 1993) (a noncitizen “may not ‘bootstrap’ eligibility from one waiver to the other since he should not be eligible for either form of relief without the other waiver having first been granted.”).

[580] See Comas v. McDonough, 2005 WL 670540 (D. Mass. Mar. 23, 2005) (unpublished).