Crimes of Moral Turpitude

(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,”[522] 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.[523]  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, [524]  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.”

[522] 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).  See also, Mejia v. Gonzales, 499 F.3d 991 (9th Cir. Aug. 24, 2007) (8 C.F.R. § 212.7(d), which requires noncitizens convicted of violent crimes to show “exceptional and extremely unusual hardship” is not ultra vires to 8 U.S.C. § 1182(h), and is not impermissibly retroactive).

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

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