Criminal Defense of Immigrants


§ 24.20 B. Offenses Committed After Grant (209(c) Waiver)

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If a noncitizen is convicted of an aggravated felony (that also triggers inadmissibility) after a grant of asylum, but before adjusting status to that of a lawful permanent resident under INA § 209, a waiver of inadmissibility may be available under INA § 209(c).  The INA § 209(c) waiver may be granted “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.”[283]  Although broadly written, the Attorney General has limited these waivers, in the case of a person convicted of a “violent or serious crime” to those who can demonstrate “extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which the [noncitizen] clearly demonstrates that the denial of adjustment of status would result in exceptional and extremely unusual hardship.”[284]


A noncitizen’s asylee status may be terminated, and the noncitizen subsequently removed, if s/he is convicted of a “particularly serious crime.”[285]  If the asylee is in removal proceedings, the Immigration Judge has jurisdiction to grant the waiver and adjust the status of the asylee.[286]  The Immigration Judge also has jurisdiction to decide, as a matter of discretion, whether to terminate the asylee status and allow adjustment, or terminate status and order removal.[287]  Therefore, even if the asylee (but not refugee) has been convicted of an aggravated felony or other “particularly serious crime,” s/he may still be able to adjust status under INA § 209.

[283] INA § 209(c), 8 U.S.C. § 1159.

[284] Matter of Jean, 23 I. & N. Dec. 373, 383 (BIA 2002) (manslaughter conviction arising from shaking a baby), affirmed by Jean v. Gonzales, 452 F.3d 392 (5th Cir. Jun. 9, 2006) (attorney general did not act ultra vires to the Act in creating and applying new heightened standards for allowing for adjustment of status and discretionary grant of relief from inadmissibility under INA § 209(c), 8 U.S.C. § 1159(c), since the Jean heightened waiver standard is rationally related to the national immigration policy of not admitting noncitizens who would be a danger to society and within the attorney general’s discretion).  But see Rivas-Gomez v. Gonzales, 441 F.3d 1072 (9th Cir. 2006) (IJ failed to make determination that statutory rape was a “violent or dangerous” crime before improperly requiring showing of hardship).

[285] 8 C.F.R. § § 1208.13(c)(2), 1208.24(a)(1), (2).

[286] Matter of KA, 23 I. & N. Dec. 661, 663-664 (BIA 2004).  A different rule applies to noncitizens who entered the United States as refugees.  See Matter of HN, 22 I. & N. Dec. 1039 (BIA 1999) (IJ has jurisdiction only after denial of adjustment by the agency).

[287] Matter of KA, supra, 23 I. & N. Dec. at 664-666.  Note that a different rule applies to refugees. Matter of Smriko, 23 I. & N. Dec. 836 (BIA Nov. 10, 2005) (refugee may be placed in removal proceedings, and found removable, even though refugee status has not been terminated); Gutnik v. Ashcroft, 469 F.3d 683 (7th Cir. 2006) (refugee adjustment under INA § 209(a), 8 U.S.C. § 1159(a) specifically includes a requirement that the refugee has not acquired permanent resident status at the time of adjustment; INA 209(b), 8 U.S.C. § 1159(a) for asylee adjustments does not contain the same requirement, so a conditional resident could apply for asylee adjustment as long as she remains a refugee within the meaning of INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) and meets the other requirements); Romanishyn v. Attorney General, 455 F.3d 175 (3d Cir. Jul. 20, 2006) (INA allows noncitizen who entered the country as a refugee, and later adjusted status to lawful permanent resident to be placed in removal proceedings although the Attorney General never terminated his refugee status pursuant to INA § 207, 8 U.S.C. § 1157(c)(4)).




Matter of C-J-H, 26 I. & N. Dec. 284 (BIA 2014) (noncitizen who has already adjusted status from asylee to LPR cannot re-adjust under INA 209(b), as a defense to removal).
Matter of DK, 25 I&N Dec. 761 (BIA Apr. 2012) (noncitizen refugee under INA 207, 8 U.S.C. 1157, who has not adjusted status to LPR status may be placed in removal proceedings without a prior determination by the DHS that the noncitizen is inadmissible; distinguishing Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986); when removal proceedings are initiated against a noncitizen who has been "admitted" to the United States as a refugee, the charges of removability under INA 237, 8 U.S.C. 1227 apply).

Fourth Circuit

Saintha v. Mukasey, 516 F.3d 243 (4th Cir. Feb. 14, 2008) (adjustment of status with waiver under INA 209(c) is not available to a refugee that has already adjusted status).

Sixth Circuit

Stolaj v. Holder, 577 F.3d 651 (6th Cir. Aug. 19, 2009) (status as a former asylee granted LPR status does not prevent DHS from initiating removal proceedings based on fraud at the time asylum was granted).

Eighth Circuit

Freeman v. Holder, ___ F.3d ___, ___, 2010 WL 760238 (8th Cir. Mar. 8, 2010) (noncitizen who has been granted a waiver of inadmissibility under INA 209(c) is still "removable" for purposes of barring circuit court jurisdiction under INA 242(a)(2)(C), 8 U.S.C. 1252(a)(2)(C)).

Ninth Circuit

Robleto-Pastora v. Holder, 567 F.3d 437 (9th Cir. May 27, 2009) (a noncitizen who has adjusted status under INA 209(b) is no longer an asylee; the DHS does not have to terminate asylee status officially under INA 208(c)(2), (3), 8 C.F.R. 208.22, 208.24).