Criminal Defense of Immigrants

A noncitizen who has resided continuously in the United States since January 1, l972 may become a lawful permanent resident through “registry” (i.e., creation of a record of admission), if s/he can show Good Moral Character and show that s/he is not inadmissible, and not ineligible for United States citizenship.[295]  An aggravated felony conviction will bar a finding of Good Moral Character if the conviction occurred after November 29, 1990.  See § 15.6, supra.  Deportation since January 1, 1972 terminates continuous residence, but voluntary departure does not.  The individual may assert registry as a de­fense in a removal hearing, or may make an affirmative application if not in deportation proceedings.

The applicant must establish Good Moral Character at the time of the application and for an undefined “reasonable period of time” preceding the application.  Rejecting the government’s argument that this should mean since January 1, 1972, the BIA stated only that “the greater the gravity of an individual’s past misconduct, the longer the period of intervening good conduct must be . . . .”[296]   Applicants who have engaged in conduct that would make them statutorily ineligible to show Good Moral Character “may be required to present compelling evidence that their character has changed.”[297] 

The statute appears to state that all of the criminal grounds of inadmissibility apply to registry applicants, although a BIA case has cast some doubt on this.[298]  Registry applicants are eligible to apply for a discretionary waiver of some inadmissibility grounds.[299] 

[295]  INA § 249, 8 U.S.C. § 1259.

[296]  Matter of Sanchez-Linn, 20 I. & N. Dec. 362 (BIA 1991).

[297] Ibid.

[298] In Matter of Sanchez-Linn, supra, the respondent appeared clearly excludable because of his past convictions for attempted murder and voluntary manslaughter.  Without mentioning this, the BIA focused entirely on whether the convictions made him ineligible to establish good moral character for a reasonable time.  This case could be the basis for arguing that the requirement of admissibility is meant to apply only to registry applicants who apply based on presence since 1942 rather than 1972.  That would be beneficial to applicants who have past convictions that make them excludable but leave them able to show good moral character for a reasonable time.  Or perhaps Sanchez-Linn was granted a INA § 212(h) waiver, but the BIA does not mention this.

[299] INA § 212(h), 8 U.S.C. § 1182(h); see 8 C.F.R. § 249.1.