Criminal Defense of Immigrants

(C)  Violent or Dangerous Crimes.  Effective January 27, 2003, applicants for relief under INA § 212(h) who have been convicted of “violent or dangerous crimes,”[493] 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.”  The term “violent or dangerous crime” has yet to be clearly defined.

A May 27, 2003 USCIS memorandum has 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.[494]  Therefore, the relief can be granted if the applicant him- or herself suffers exceptional and extremely unusual hardship.

The Ninth Circuit, in Rivas-Gomez v. Gonzales, [495]  held that before an immigration judge may apply the heightened hardship standard, s/he must first determine, on the basis of the underlying facts of the offense, whether the offense was a “violent or dangerous” crime. In this case the court had already determined that the offense (statutory rape) was an aggravated felony.  Therefore, it appears that the fact the offense was an aggravated felony was not sufficient to show the offense was necessarily “violent or dangerous.”

Rivas-Gomez rejected an argument that the Attorney General was acting ultra vires to INA § 212(h) by imposing a heightened hardship standard, finding that the argument was foreclosed by an earlier case finding the Attorney General was within his power to require a showing of “outstanding equities” of drug offenders applying for relief under INA § 212(c).[496]  In the context of a waiver under INA § 209(c), the Fifth and Seventh Circuits have rejected the same argument.[497]

Arguably, the Ninth Circuit’s reasoning that, “[u]nder Ayala-Chavez the Attorney General has broad discretion to grant or deny waivers and may establish general standards governing the exercise of such discretion as long as these standards are rationally related to the statutory scheme,”[498] underscores the argument that the use of the exceptional and extremely unusual hardship standard in adjudicating a 212(h) application is inappropriate, since it is not rationally related to the statutory scheme expressed in INA § 212(h), which already requires a showing of exceptional hardship.[499]

[493] 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). 

[494] Memo, Yates, Acting Director of Operations, HQADN 70/23 (May 27, 2003), posted on AILA InfoNet at Doc. No. 03080717.

[495] Rivas-Gomez v. Gonzales, 441 F.3d 1072 (9th Cir. Apr. 3, 2006).

[496] Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir. 1991).

[497] Ali v. Achim,  468 F.3d 462 (7th Cir. Nov. 6, 2006); Jean v. Gonzales, 452 F.3d 392 (5th Cir. 2006).

[498] Rivas-Gomez v. Gonzales, 441 F.3d at 1078.

[499] See INA § 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B).  Cf. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (with regard to hardship determinations, principles of statutory construction require giving meaning to Congress’ use of different language in different sections of the same statute); Matter of Sotelo, 23 I. & N. Dec. 201 (BIA 2001) (rejecting use of “outstanding equities” in INA § 212(c) context).