Criminal Defense of Immigrants

Relief under INA § 212(h) is available to waive inadmissibility (but not deportability) on the basis of: (1) crimes of moral turpitude;[477] (2) first time simple possession of less than 30 grams of marijuana;[478] (3) multiple criminal convictions for which the aggregate sentence to confinement was five years or more;[479] (4) prostitution and commercialized vice;[480] and (5) for certain noncitizens involved in serious criminal activity who have asserted immunity from prosecution.[481]  No other grounds of inadmissibility may be waived.[482]  If the conviction involved violence, a heightened hardship standard is applied.  See § 24.29(C), infra.

Since conviction of an aggravated felony does not trigger inadmissibility, crimes of moral turpitude that are also aggravated felonies can be waived for non-LPRs, and for convictions obtained prior to adjustment.[483]  An aggravated felony conviction generally only bars § 212(h) relief for lawful permanent residents who committed the offense after a lawful admission[484] to the United States.  See § 24.29(B), infra. 

[477] See Chapter 20, supra.

[478] See § 21.35, supra.  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).  The plain meaning of the statute, however, is that the test is 30 grams of marijuana, and hashish is marijuana, so there is an argument the equivalency formula is ultra vires to the statute.

[479] See § 18.5, supra.

[480] See § 18.24, supra.

[481] Appendix E, § 9, infra.

[482] 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).

[483] 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).

[484] See § § 17.5-17.8, supra.