Aggravated Felonies

 

            A lawful permanent resident cannot apply for a waiver of inadmissibility under INA § 212(h) if s/he has been convicted of an aggravated felony after becoming an LPR.  However, a non-LPR may apply to waive the conviction if the aggravated felony conviction also triggers a ground of inadmissibility that may be waived under INA § 212(h).  If the conviction involved violence, a heightened hardship standard is applied.

 

            A waiver under INA § 212(h) is available in inadmissibility proceedings, even where the waiver application is not accompanied by an adjustment application.[602]  The waiver can also be granted in deportation proceedings in conjunction with an adjustment application.[603]  The waiver may also be granted nunc pro tunc to waive deportation for having been inadmissible at last entry, even if no adjustment application is filed.[604]

 

To be eligible to apply for a waiver under INA § 212(h) a noncitizen must come within one of the following four categories: 

 

(1)  the noncitizen is the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident, and the noncitizen’s removal would cause extreme hardship to that relative, or

 

(2)  the activities that are the basis for inadmissibility occurred at least 15 years before the current application, or

 

(3)  the person is inadmissible for prostitution under INA § 212(a)(2)(D), or

 

(4)  the person is eligible for self-petitioning or cancellation as an abused spouse or child under VAWA.[605]

 

The immigration authorities have discretion to grant a waiver of inadmissibility under INA § 212(h) for convictions involving moral turpitude, prostitution, multiple convictions with an aggregate five-year sentence, foreign diplomats asserting immunity, and inadmissibility based on a single conviction of simple possession of 30 grams or less of marijuana.[606]  No other drug offenses may be waived.[607]

 

Effective January 27, 2003, a new regulation imposes an additional barrier to applicants for relief under INA § 212(h) who have been convicted of “violent or dangerous crimes.”[608]  Noncitizens who fall within this new category must either show exceptional circumstances involving national security or foreign policy concerns, or clearly demonstrate that denial of the relief would result in “exceptional and extremely unusual hardship.”  A May 27, 2003 USCIS memorandum clarified that the applicable hardship standard under 8 C.F.R. § 212.7(d) will be the same as that applied under INA § 240A(b) for cancellation of removal for certain non-lawful permanent residents.  It also recognizes that, unlike § 240A(b), the regulation does not limit the persons for whom hardship must be shown to the noncitizen’s citizen or LPR spouse, child or parent.  Therefore, the relief can be granted if the applicant him- or herself suffers exceptional and extremely unusual hardship.

 

Permanent residents now face additional requirements for § 212(h) relief.  Section 212(h) relief will not be granted to a noncitizen who has previously been admitted to the United States as a lawful permanent resident if, since the date of admission as a permanent resident:

 

(1)  the person has been convicted of an aggravated felony, or

 

(2)  the person “has not lawfully resided continuously” in the U.S. for at least seven years immediately preceding the date of “initiation of proceedings to remove the alien.” 

 

If the applicant is a lawful permanent resident, and has been convicted of an offense that also amounts to an aggravated felony (e.g., a crime involving moral turpitude which also constitutes a crime of violence with a one-year sentence imposed), then INA § 212(h) eligibility depends upon whether the applicant was convicted of the aggravated felony before or after becoming a lawful permanent resident.  Conviction of an aggravated felony does not preclude INA § 212(h) relief for applicants who are not permanent residents, or who are lawful permanent residents but were convicted of an aggravated felony before gaining permanent residence.[609]  In contrast, a person who, since being admitted as a permanent resident, has been convicted of an aggravated felony, is not eligible for relief under INA § 212(h).

 

There is no statutory bar to admission on account of a conviction of an aggravated felony (except for murder and criminal acts involving torture), so the many moral turpitude offenses that also are aggravated felonies (e.g., theft and violence offenses with a sentence imposed of one year, or sexual abuse of a minor — including statutory rape) can be waived for non-LPRs, and for convictions obtained prior to adjustment.[610]

Legal permanent residents have made equal protection challenges to the additional restrictions imposed upon them, and some of these claims have won support in federal district courts.[611]  However, circuit courts of appeals are increasingly rejecting the constitutional claims.[612]

 

A federal district court in New York has held that principles of customary international law, as demonstrated by various treaties and human rights declarations, require that a noncitizen be given the opportunity to present the reasons why s/he should not be deported to an Immigration Judge, rather than be subject to automatic banishment upon conviction of an aggravated felony offense.  According to the court, international customary law requires that U.S. officials determine whether deportation of a parent would be in the “best interests” of the child.  The least restrictive means to bring the INA into compliance with this customary international law, according to the court, is to extend INA § 212(h) relief to all eligible aggravated felons subject to removal, with the possible exception of those convicted of murder, torture, or those who are a security threat to the United States.[613] 

 

            Warning: Non-lawful permanent residents brought under expedited administrative removal proceedings for aggravated felony convictions might be unable to apply for INA § 212(h) relief.[614]

[602] Matter of Millard, 11 I. & N. Dec. 175 (BIA 1975).  Noncitizens in exclusion proceedings have no right to adjust status before an Immigration Judge, and instead must apply to the District Director. Alvarez-Garcia v Ashcroft, 378 F.3d 1094 (9th Cir. Aug. 10, 2004).

[603] Matter of Zoellner, 15 I. & N. Dec. 162 (BIA 1974) (noncitizen convicted of two crimes involving moral turpitude and found deportable under INA § 241(a)(4), 8 U.S.C. § 1231(a)(4) was properly advised that s/he could apply for both adjustment of status under INA § 245, 8 U.S.C. § 1255 and an application for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h)).  A § 212(h) waiver cannot be used, by itself, to waive a ground of deportation.  Matter of Balao, 20 I. & N. Dec. 440 (BIA 1992).  The only exception to this may be where the noncitizen is deportable for being inadmissible at entry.  Matter of Ulloa, 20 I. & N. Dec. 725 (BIA 1999).

[604] Matter of Sanchez, 17 I. & N. Dec. 218 (BIA 1980); Matter of Parodi, 17 I. & N. Dec. 608 (BIA, 1980); see Matter of Lett, 17 I. & N. Dec. 312 (BIA 1980).

[605] Under VAWA 2000 amendments, new INA § 212(h)(1)(C), 8 U.S.C. § 1182(h)(1)(C) provides that § 212(h) is available if “(C) the alien qualifies for classification under clause (iii) or (iv) of section 204(a)(1)(A) or classification under clause (ii) or (iii) of section 204(a)(1)(B).”  Those sections refer to the VAWA self-petitioning categories, for noncitizens subjected to abuse by a U.S. citizen or permanent resident spouse or parent.  

[606] In 1996, the INS General Counsel withdrew a prior legal opinion and ruled that “simple possession of 30 grams or less of marijuana” includes all other cannabis products, including hashish, that fall within the broad federal definition of marijuana provided in 21 U.S.C. § 802(16). INS General Counsel Legal Opinion 96-3 (Apr. 23, 1996), withdrawing INS General Counsel Legal Opinion 92-47 (Aug. 19, 1992) and reaffirming memoranda dated August 11, 1994, and February 17, 1994. The General Counsel also recommended, however, that a § 212(h) waiver be denied to a noncitizen possessing an amount of cannabis product the equivalent of more than 30 grams of marijuana leaves. For equivalency determinations, the General Counsel Opinion referred to 18 U.S.C. App. 4 § 2D1.1 (Drug Equivalency Table, Schedule I, Marijuana) used for sentencing, which states, for example, that 30 grams of cannabis resin is equivalent to 150 grams of marijuana, thirty grams of hashish oil is equivalent to 1500 grams of marijuana, thirty grams of Tetrahydocannabinol (THC) is equivalent to 5,010 grams of marijuana. The Genco opinion noted that 6 grams of cannabis resin is the equivalent of 30 grams of marijuana leaves.  See, e.g., Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993).

[607] But see Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. Jan. 4, 2005) (statutory exception to controlled substances conviction deportation ground, INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), for “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” includes an implied exception for personal use of a small amount of marijuana).

[608] 8 C.F.R. § 1212.7(d).  This regulation is an extension of the Attorney General opinion in Matter of Jean, 23 I. & N. Dec. 373 (A.G. 2002) (withholding applicants convicted of violent or dangerous crimes should be denied relief as a matter of discretion).  The term “violent or dangerous crime” has yet to be defined.

[609] Matter of Michel, 21 I. & N. Dec. 1101 (BIA 1998); Matter of Kanga, 22 I. & N. Dec. 1206 (BIA 2000) (an aggravated felony is not a ground of inadmissibility or bar to waiver under INA § 212(h), 8 U.S.C. § 1182(h), except for some permanent residents).  Remember that INA § 212(h), 8 U.S.C. § 1182(h) cannot waive inadmissibility on account of a conviction which is an aggravated felony; it will only waive inadmissibility under certain named grounds such as moral turpitude and prostitution.  The question is whether conviction of an aggravated felony will bar the person from eligibility to waive these specified grounds.  INA § 212(h), 8 U.S.C. § 1182(h) can never waive a conviction for drug sale.  Under certain circumstances, a person inadmissible under the moral turpitude, prostitution, or other specified ground can apply for INA § 212(h), 8 U.S.C. § 1182(h) relief despite the fact that s/he has been convicted of an aggravated felony (e.g., if the moral turpitude offense also is an aggravated felony).

[610] Matter of Michel, 21 I. & N. Dec. 1101 (BIA 1998); Matter of Kanga, 22 I. & N. Dec. 1206 (BIA 2000) (reaffirming that a non-lawful permanent resident convicted of an offense that would otherwise be waivable under § 212(h) is not barred because the offense is an “aggravated felony;” holds that an aggravated felony is not a basis for inadmissibility under the “ineligible for citizenship” ground).

[611] Song v. INS, 82 F.Supp.2d 1121 (C.D. Cal. 2000) (finding equal protection violation); Jankowski v. INS, 2001 WL 76341 (D.Conn. 2001); Catten v. INS, 178 F.3d 110 (3d Cir. 1999) (citing Song with approval); but see Alvarez-Garcia v. Ashcroft, 378 F.3d 1094 (9th Cir. Aug. 10, 2004) (equal protection does not require granting immigration judges same jurisdiction to adjudicate adjustment petitions in pre-IIRAIRA exclusion proceedings that immigration judges have in deportation proceedings).  See also Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y. 2002) (finding that the least restrictive means to bring the INA into compliance with customary international law is to extend INA § 212(h), 8 U.S.C. § 1182(h) relief to all eligible aggravated felons subject to removal, with the possible exception of those convicted of murder, torture, or who are a security threat to the United States), reversed, 329 F.3d 51 (2d Cir. May 1, 2003).

[612] Dieppe v. Quarantillo, 337 F.3d 326 (3d Cir. July 28, 2003); Lukowski v. INS, 279 F.3d 644, (8th Cir. 2002); Finau v. INS, 277 F.3d 1150 (9th Cir. 2002); Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001); Lara-Ruiz v. INS, 241 F.3d 934, 947 (7th Cir. 2001).

[613] Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y. 2002), reversed, 329 F.3d 51 (2d Cir. 2003).

[614] See ILRC § 9.48.