Crimes of Moral Turpitude

(D)

In Conjunction with Adjustment of Status.[525]  A waiver under INA § 212(h) is available as a stand-alone means to avoid inadmissibility.[526]  However, a stand-alone grant of § 212(h) relief does nothing to prevent the DHS from charging the same criminal conviction as a ground of deportation.[527]  For this reason, § 212(h) waiver applications are almost always made in conjunction with an application for adjustment of status,[528] which if granted prevents the DHS from using the criminal offense to bring charges of deportability because the offense can no longer be considered to have occurred “after admission.”[529]  The waiver may also be granted nunc pro tunc to waive deportation for having been inadmissible at last entry, even if no adjustment application is filed.[530]

[525] See § 3.2, supra.

[526] Matter of Abosi, 24 I. & N. Dec. 204 (BIA 2007) (returning lawful permanent resident seeking to overcome a ground of inadmissibility is not required to apply for adjustment of status in conjunction with a waiver of inadmissibility under section 212(h); noncitizen in this case was inadmissible, but not deportable); Matter of Millard, 11 I. & N. Dec. 175 (BIA 1975). 

[527] Cf. Matter of Balao, 20 I. & N. Dec. 440 (BIA 1992) (§ 212(h) waiver cannot be used, by itself, to waive a ground of deportation).

[528] Matter of Zoellner, 15 I. & N. Dec. 162 (BIA 1974) (noncitizen convicted of two crimes involving moral turpitude and found deportable under INA § 241(a)(4), 8 U.S.C. § 1231(a)(4) was properly advised that s/he could apply for both adjustment of status under INA § 245, 8 U.S.C. § 1255 and an application for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h)).

[529] See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 17.7 (4th Ed. 2007).

[530] Matter of Ulloa, 20 I. & N. Dec. 725 (BIA 1999); Matter of Sanchez, 17 I. & N. Dec. 218 (BIA 1980); Matter of Parodi, 17 I. & N. Dec. 608 (BIA, 1980); see Matter of Lett, 17 I. & N. Dec. 312 (BIA 1980).