(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).

WAIVERS " INA 212(h) WAIVER " AGGRAVATED FELONY BAR FOR LPRS -- PRACTICE ADVISORY
All circuits to consider the question have held that plain language of the statutory aggravated felony bar to the waiver in INA 212(h) applies only to individuals who entered the United States as lawful permanent residents (LPR), not to those who subsequently adjusted to LPR status. Papazoglou v. Holder, 725 F.3d 790 (7th Cir. 2013); Hanif v. Atty. General of the United States, 694 F.3d 479, 487 (3d Cir. 2012); Bracamontes v. Holder, 675 F.3d 380, 386"87 (4th Cir. 2012); Lanier v. U.S. Atty. Gen., 631 F.3d 1363, 1366"67 (11th Cir. 2011); Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir. 2008); see also Hing Sum v. Holder, 602 F.3d 1092, 1097 (9th Cir. 2010)(holding respondent was admitted as LPR so later aggravated felony conviction barred 212(h) relief). Thus, the Third, Fourth, Fifth, Seventh, and Eleventh Circuits have held that INA 212(h) precludes a waiver only for those persons who, at the time they lawfully entered into the United States, had attained the status of lawful permanent residents. While the Ninth Circuit considered a slightly different question, its interpretation of the statute is consistent. See Sum, supra, at 1097, citing Martinez, supra, at 546, with approval. Therefore, while there is no Ninth Circuit decision directly on point, it is highly likely that the Ninth Circuit would decide this question consistently with the other five circuits. The client entered the United States on October 23, 1988, as a refugee, and has never left the country. His LPR status was granted on April 20, 1989. He was therefore never previously . . . admitted to the United States as an alien lawfully admitted for permanent residence . . . . 8 U.S.C. 1182(h)(2)(second to last sentence). Thus, the aggravated felony bar to eligibility for 212(h) relief does not apply to him. Nonetheless, the clients criminal history constitutes powerful equitable factors that may motivate the immigration authorities to deny the waiver.

BIA

RELIEF " WAIVERS " INA 212(h) WAIVER " UNAVAILABLE TO NONCITIZEN PREVIOUSLY ADMITTED INTO U.S. AS LPR AT ANY TIME IN THE PAST
Matter of Vella, 27 I&N Dec. 138 (BIA 2017) (a noncitizen has previously been admitted to the United States as an LPR within the meaning of INA 212(h) if he or she was inspected, admitted, and physically entered the country as an LPR at any time in the past, even if such entry is not the most recent, and therefore is ineligible for a waiver of inadmissibility under INA 212(h)). CCDOI 22.21 NOTE: This means that while an LPR may not be subject to the aggravated felony or 7 year bars to an INA 212(h) waiver if they adjusted status within the United States, such persons would become subject to the bar if they depart the U.S. and reenter via their LPR status.

RELIEF " WAIVERS " INA 212(h) WAIVER " AGGRAVATED FELONY BAR
Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) (noncitizen who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under INA 212(h), 8 U.S.C. 1182(h) (2012), as a result of an aggravated felony conviction); withdrawing Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010).

RELIEF " WAIVERS " 212(h) WAIVER " NOT AVAILABLE IN REMOVAL PROCEEDINGS WITHOUT CONCURRENT ADJUSTMENT APPLICATION
Matter of Rivas, 26 I&N Dec. 130 (BIA 2013) (waiver of inadmissibility under INA 212(h) is not available on a stand-alone basis; waiver must be pursuant to an application for adjustment of status; waiver may not be granted nunc pro tunc to avoid requirement that noncitizen must establish eligibility for adjustment).

CONTROLLED SUBSTANCES " DEPORTATION " SINGLE OFFENSE EXCEPTION " CIRCUMSTANCE-SPECIFIC INQUIRY
Matter of Davey, 26 I&N Dec. 37 (BIA Oct. 23, 2012) (noncitizen convicted of more than one statutory crime may still meet single offense involving possession for ones own use of thirty grams or less of marijuana exception to deportability if all the noncitizens crimes were closely related to or connected with a single incident, provided that none of those crimes was inherently more serious than simple possession). NOTE: This might be analogized to fit a noncitizen with the petty offense exception to inadmissibility for one CMT where the noncitizen was charged with two counts arising out of the same incident.

RELIEF " WAIVERS " 212(h) WAIVER " LPR BARS
Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012) (except where it is not permitted to by the Circuit Court of Appeal with jurisdiction over the case, all LPRs, regardless of how they acquired their LPR status, are subject to the LPR bars to 212(h), and may not apply for 212(h) relief if he or she (a) has not accrued seven years lawful residence in the U.S. before issuance of an NTA, or (b) was convicted of an aggravated felony since becoming an LPR); Bracamontes v. Holder, 2012 WL 1037479 (4th Cir.Mar. 29, 2012); Martinez v.Mukasey, 519 F.3d 532 (5th Cir. 2008); and Lanier v. U.S. Attorney General, 631 F.3d 1363 (11th Cir. 2011), followed in jurisdiction only. NOTE: In Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) the Ninth Circuit held that the 212(h) bar applies only to a noncitizen who has been admitted into the United States at the border as a lawful permanent resident. The BIA ought to recognize that the Ninth Circuit also has joined the other circuit courts to find the bar only applies to LPRs who were admitted as LPRs at the border, but it ignores the Ninth Circuit case. For further discussion of the issue, see the federal cases cited below and see Brady, "Update on 212(h)" at www.ilrc.org/crimes and at Bender's Immigration Bulletin.

RELIEF " WAIVERS " 212(H) WAIVER " AGGRAVATED FELONY BAR
Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012) (in removal proceedings arising outside the Fourth, Fifth, and Eleventh Circuits, section 212(h) relief is unavailable to any alien who has been convicted of an aggravated felony after acquiring lawful permanent resident status, without regard to the manner in which such status was acquired); reaffirming Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010). Practice Advisory. This decision is wrong and should be fought. First the BIA is wrong, and the Fourth, Fifth, Ninth, and Eleventh Circuits are right about the meaning of the INA 212(h) language. Those circuits found that the plain language of the statute requires the person to have been admitted at the border as an LPR in order for the bars to apply. The BIA's analysis in Matter of Koljenovic is innocent. Second, the BIA was wrong to not include the Ninth Circuit among the others who have upheld this ruling. In recent Ninth Circuit Sum decision, the holding was that admission at the border as an LPR still triggers the bar, even if the person was actually inadmissible at that admission. However, the court based the holding on its careful analysis of the 212(h) language, which necessarily included a finding that the language refers to admission as an LPR at the border. Although the Rodriguez case involved someone who entered without inspection and then adjusted (the situation in Koljenovic), the decision appears to state that the bar applies to everyone. The BIA has the power to make dictum statements and thereby announce a new rule. Thanks to Katherine Brady.

RELIEF - WAIVERS - 212(H) WAIVER - SEVEN-YEAR RESIDENCE REQUIREMENT APPLIES TO PERSON WHO ENTERED WITHOUT INSPECTION AND LATER ADJUSTED TO PERMANENT RESIDENCE
Matter of Koljenovic, 25 I. & N. Dec. 219 (BIA Apr. 23, 2010) (noncitizen who adjusted status after having entered the United States without inspection has "previously been admitted to the United States as an alien lawfully admitted for permanent residence" and must therefore satisfy the 7-year continuous residence requirement of INA 212(h), 8 U.S.C. 1182(h) (2006), to be eligible for a waiver of inadmissibility).

CATEGORICAL ANALYSIS - CONTROLLED SUBSTANCES - 30 GRAMS OF MARIJUANA EXCEPTIONS
Matter of Martinez-Espinoza, 25 I. & N. Dec. 118 (BIA Nov. 4, 2009) (respondent may look to the specific facts of the underlying conviction to determine the amount of marijuana involved to prove, by a preponderance of the evidence, that the offense fits within the "less than 30 grams of marijuana" exception for purposes of a seeking a waiver under INA 212(h)), citing Nijhawan v. Holder, 129 S. Ct. 2294, 2298 (2009).

"We think it unlikely that Congress intended to make an aliens eligibility for a waiver dependent on such an arbitrary factor as whether the convicting jurisdiction treated drug quantity as an element. Furthermore, section 212(h) requires only that an applicants inadmissibility "relate[] to" its object of reference, namely, "a single offense of simple possession of 30 grams or less of marijuana." Given the narrow specificity of that object, it is hard to imagine any offenseapart from a few inchoate offensesthat could "relate to" it categorically without actually being a simple marijuana possession offense. Had Congress wished to make waivers available only to aliens who had committed simple marijuana possession, using a broad expression like "relates to" would have been an unlikely choice of words. Thus, we conclude that Congress envisioned something broader, specifically, a factual inquiry into whether an aliens criminal conduct bore such a close relationship to the simple possession of a minimal quantity of marijuana that it should be treated with the same degree of forbearance under the immigration laws as the simple possession offense itself."

RELIEF - WAIVERS - 212(H) WAIVER - LAWFUL RESIDENCE DOES NOT INCLUDE PRESENCE AS ASYLUM OR ADJUSTMENT APPLICANT ALONE
Matter of Rotimi, 24 I. & N. Dec. 567 (BIA 2008) (the period a lawful permanent resident spent in the United States as an applicant for asylum or while adjustment of status was pending does not count toward 7-years lawful residence requirement under INA 212(h), where the noncitizen lacked any other basis on which to claim lawful residence). http://www.usdoj.gov/eoir/vll/intdec/vol24/3616.pdf

RELIEF - 212(h) WAIVER - PROOF MARIJUANA 30 GRAMS OR LESS
Matter of Grijalva, 19 I. & N. Dec. 713 (BIA 1988) (BIA will accept a respondent's testimony as to proof of weight of marijuana possessed, for purposes of establishing that the defendant possessed 30 grams or less).

Second Circuit

RELIEF " WAIVERS " INA 212(h) " AGGRAVATED FELONY BAR
Flores v. Holder, ___ F.3d ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (noncitizen convicted of aggravated felony not barred from 212(h) relief, since he had not previously been admitted at a lawful permanent resident), following Matter of Michel, 21 I. & N. Dec. 1101, 1104 (BIA 1998) (Section 212(h) of the Act, while specifically precluding waiver eligibility for a lawful permanent resident who has been convicted of an aggravated felony, imposes no such restriction on one who has not been admitted previously as a lawful permanent resident.).

RELIEF " WAIVERS " INA 212(h) WAIVER " LPR AGGRAVATED FELONY BAR
Husic v. Holder, ___ F.3d ___, 2015 WL 106359 (2d Cir. Jan. 8, 2015) (the aggravated felony bar to eligibility for a waiver of inadmissibility under INA 212(h), applies only to those persons with an aggravated felony conviction who became LPRs at the time that they lawfully entered the United States); but see Matter of Koljenovic, 25 I&N Dec. 219 (2010). Note: With this decision, the Second Circuit joins the seven other Courts of Appeal"an overwhelming majority"to have rejected Matter of Koljenovic. To date, the Eighth Circuit stands alone in upholding the BIAs decision. The First and the Tenth Circuits have not yet ruled on the issue.

RELIEF - WAIVERS - 212H WAIVERS - STATUTORY INTERPRETATION
Dobrova v. Holder, 607 F.3d 297 (2d Cir. Jun. 9, 2010) (the phrase "previously admitted as a lawful permanent resident" for purposes of barring certain lawful permanent residents from relief under INA 212(h) means any prior admission as a lawful permanent resident, not only the most recent; LPR who later entered without admission was still barred from 212(h) as a aggravated felon).

RELIEF - WAIVERS - 212(H) WAIVER - CONTINUOUS RESIDENCE REQUIREMENT
Rotimi v. Holder, 577 F.3d 133 (2d Cir. Aug. 14, 2009) (per curiam) (the phrase "lawfully resided continuously" used in INA 212(h), 8 U.S.C. 1182(h), is ambiguous, and the BIA's interpretation is reasonable, so the court of appeals grants Chevron deference to its conclusion that respondent "did not lawfully reside in the United States during those periods in which he was an applicant for asylum or for adjustment of status and lacked any other basis for claiming lawful residence."), affirming In re Rotimi, 24 I. & N. Dec. 568, 574 (BIA 2008) ("The lawfulness of an alien's residence stems from the grant of a specific privilege to stay in this country, not the mere fact that he or she is an applicant for such a privilege.").

RELIEF - WAIVERS - 212(H) WAIVER - VIOLENT CRIMES
Samuels v. Chertoff, 550 F.3d 252 (2d Cir. Dec. 19, 2008) (regulation at 8 U.S.C. 1212.7(d), requiring a showing of exceptional and extremely unusual hardship by noncitizens convicted of violent crimes is not inconsistent with INA 212(h), or arbitrary or capricious, and may be applied to convictions predating its publication date; case remanded because BIA may have misapplied the regulation in this case, since it only considered hardship to the petitioners family, but not the petitioner himself.)

Third Circuit

RELIEF " WAIVERS " 212(H) WAIVER " LPR BARS
Hanif v. Attorney General of the United States, 694 F.3d 479 (3d Cir. Sept. 14, 2012) (the language of section 1182(h) is clear and unambiguous on its face, in that it requires both an "admission" and that the "admission" have been made by "an alien lawfully admitted for permanent residence; petitioner was never "admitted" to the United States "as an alien lawfully admitted for permanent residence," since he acquired his LPR status through adjustment of status while in the United States).

RELIEF " INA 212(H) " LPR ADMISSION BAR
Martinez v. Atty Gen. United States, 693 F.3d 408 (3rd Cir. Sept. 6, 2012) (noncitizen who entered the United States as a lawful permanent resident, but who was not lawfully entitled to LPR status, is still subject to the lawful permanent resident bars under INA 212(h)).

RELIEF"WAIVERS"INA 212(h) DOES NOT WAIVE INADMISSIBILITY CAUSED BY A FALSE CLAIM TO UNITED STATES CITIZEHSHIP
Castro v. Attorney General, 671 F.3d 356, 366, (3d Cir. Feb. 14, 2012) (Section 1182 provides for a waiver by the Attorney General of inadmissibility based on other forms of misrepresentation, see 8 U.S.C. 1182(i)(1); by implication, the bar to admissibility in 1182(a)(6)(C)(ii) cannot be waived by the Attorney General. Pichardo v. INS, 216 F.3d 1198, 1201 & n. 5 (9th Cir.2000).).

Fourth Circuit

WAIVERS " INA 212(h) WAIVER " LPR AGGRAVATED FELONY BAR
Mendoza Leiba v. Holder, 699 F.3d 346 (4th Cir. Nov. 9, 2012) (the LPR aggravated felony bar to relief under INA 212(h) does not apply to a noncitizen who adjusted status to that of a lawful permanent resident status while remaining within the United States); see Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012).

RELIEF"WAIVERS"212(H) WAIVER"AGGRAVATED FELONY BAR
Bracamontes v. Holder, 675 F.3d 380 (4th Cir. Mar. 29, 2012) (aggravated felony bar on eligibility for a waiver under INA 212(h) applies only to people who entered the United States as lawful permanent residents, not to those who later adjusted status to become lawful permanent residents); Lanier v. U.S. Attorney General, 631 F.3d 1363, 1366 (11th Cir. 2011); Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir. 2008); Hing Sum v. Holder, 602 F.3d 1092, 1101 (9th Cir. 2010) (Procedure, and not substance, is determinative of an admission into the United States under 1101(a)(13)(A) and 212(h). The text, structure, and history of the statute confirm that the terms admission and admitted as used in 1101(a)(13)(A) and 212(h) refer to inspection and authorization by an immigration officer at the port of entry.").

Fifth Circuit

CONTROLLED SUBSTANCES " DEPORTATION " EXCEPTION FOR FIRST OFFENSE POSSESSION OF SMALL AMOUNT OF MARIJUANA " BIA CANNOT ADD CONDITIONS
Flores v. Lynch, 803 F.3d 699 (5th Cir. 2015) (conviction for possession of marijuana in a school zone meets the personal use exception to deportability for a controlled substances offense; BIA erred in adding to the personal use exception a requirement that the offense be no more than the least serious offense). NOTE: This reasoning should also invalidate the possession in jail disqualification from the marijuana exception to the controlled substance ground of deportation. The Court specifically cited, and disagreed with, Matter of Moncada"Servellon, 24 I. & N. Dec. 62 (BIA 2007). The Court also found that Moncada-Servellon was not due Chevron deference, as it was contrary to the INA.

RELIEF " WAIVERS " 212(H) WAIVER " CONTROLLED SUBSTANCES
Rana v. Holder, 654 F.3d 547 (5th Cir. Aug. 30, 2011) (an individual who previously received a INA 212(h) waiver of inadmissibility under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), for a single conviction of possession of 30 grams or less of marijuana, cannot receive a second 212(h) waiver for a separate similar offense; rejecting the argument that any new waiver would only relate[] to a single offense of simple possession).

WAIVERS " 212(H) WAIVER " STAND-ALONE WAIVER
Cabral v. Holder, 632 F.3d 886 (5th Cir. Feb. 2, 2011) (lawful permanent resident inside the United States is not eligible for a waiver under INA 212(h) unless the respondent also applies for adjustment of status).

RELIEF - WAIVERS - 212(H) WAIVER - AGGRAVATED FELONY BAR
Martinez v. Mukasey, 519 F.3d 532, 537 (5th Cir. Mar 11, 2008) (bar to 212(h) waiver for LPRs with aggravated felony convictions only applies to noncitizens who obtained LPR status upon admission to the United States; the bar does not apply to LPRs who adjusted to LPR status without leaving the United States; the court found the language of INA 212(h) was unambiguous in this regard, and so did not give Chevron deference to the BIA). This decision overrules Matter of Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999) (en banc) (a noncitzen who entered without inspection, and later adjusted to LPR status, could be subjected to removal proceedings under INA 237(a)(2)(A)(iii), based on a subsequent aggravated-felony conviction) within the Fifth Circuit).

Seventh Circuit

RELIEF " 212(h) WAIVER " NUNC PRO TUNC
Palma-Martinez v. Lynch, __ F.3d __ (7th Cir. May 11, 2015) (nunc pro tunc waivers under INA 212(h) are not available on a stand alone basis; petition must be filed in conjunction with application for adjustment of status).

Eighth Circuit

RELIEF " WAIVER OF INADMISSIBILITY " INA 212(h) " AGGRAVATED FELONY BAR
Roberts v. Holder, 745 F.3d 928, 930 (8th Cir. Mar. 20, 2014) (that noncitizen adjusted status to that of an LPR after admission as a non-immigrant visitor did not preclude application of bar to waiver of inadmissibility for aliens lawfully admitted for permanent residence but later convicted of aggravated felony), following Matter of Rodriguez, 25 I. & N. Dec. 784, 789 (BIA 2012); disagreeing with Bracamontes v. Holder, 675 F.3d 380, 385-386 (4th Cir. 2012) (the unambiguous language of the statute provides that a person must have physically entered the United States, after inspection, as a lawful permanent resident in order for the aggravated felony bar to apply); Lanier v. U.S. Atty. Gen., 631 F.3d 1363, 1366-1367 (11th Cir. 2011) (same); Martinez v. Mukasey, 519 F.3d 532, 544 (5th Cir. 2008) (same); see also Hanif v. Attorney General of U.S., 694 F.3d 479 (3d Cir. 2012) (reaching the same conclusion as applied to 1182(h)'s residency requirement).

RELIEF " INA 212(h) " VIOLENT OR DANGEROUS CRIME
Waldron v. Holder, 688 F.3d 354 (8th Cir. Aug. 6, 2012) (BIA interpretation of violent or dangerous language in 8 C.F.R. 212.7(d), requiring a showing of exceptional and extremely unusual hardship, to include a conviction under Missouri Revised Statutes 565.060, recklessly causing serious injury to another, by hitting another person on the head with a martini glass, was reasonable).

CONTROLLED SUBSTANCES " INADMISSIBILITY " 212(h) WAIVER " PARAPHERNALIA
Popescu-Mateffy v. Holder, 678 F.3d 612 (8th Cir. May 2, 2012) (per curiam) (rejecting claim that a South Dakota possession-of-drug-paraphernalia offense relates to a single offen[s]e of 30 grams or less of marijuana[,] making him eligible for ... waiver relief pursuant to 212(h) of the INA.), following Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009).

RELIEF " WAIVERS " 212(h) WAIVER " PARAPHERNALIA
Popescu-Mateffy v. Holder, 678 F.3d 612 (8th Cir. May 2, 2012) (per curiam) (rejecting claim that a South Dakota possession-of-drug-paraphernalia offense relates to a single offen[s]e of 30 grams or less of marijuana[,] making him eligible for ... waiver relief pursuant to 212(h) of the INA.), following Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009).

Ninth Circuit

RELIEF " WAIVERS " INA 212(h) WAIVER " VIOLENT OR DANGEROUS CRIME " CATEGORICAL ANALYSIS INAPPLICABLE
Torres-Valdivias v. Lynch, ___ F.3d ___, 2015 WL 2146726 (9th Cir. May 8, 2015) (BIA was not required to apply categorical analysis to determine whether a conviction was for a violent or dangerous crime, for purposes of application of the enhanced hardship standard under Matter of Jean, 23 I. & N. Dec. 373 (Att'y Gen. 2002); immigration judge was allowed to examine documents outside the record of conviction in making the determination whether a conviction was for a violent or dangerous crime).

RELIEF " WAIVERS " INA 212(h) WAIVER " VIOLENT OR DANGEROUS CRIME " DISCRETIONARY DECISION
Torres-Valdivias v. Lynch, ___ F.3d ___, 2015 WL 2146726 (9th Cir. May 8, 2015) (determination whether conviction was for a violent or dangerous crime, for purposes of considering an application for a waiver of inadmissibility under INA 212(h), is a discretionary decision not subject to review).

RELIEF " WAIVERS " INA 212(h) WAIVER "VIOLENT OR DANGEROUS CRIME " SEXUAL BATTERY
Torres-Valdivias v. Lynch, ___ F.3d ___, 2015 WL 2146726 (9th Cir. May 8, 2015) (California conviction of sexual battery, in violation of Penal Code 243.4(a), constituted a violent or dangerous crime, for purposes of triggering application of the Matter or Jean enhanced hardship standard to an application for a waiver of moral turpitude inadmissibility under INA 212(h)).

RELIEF " WAIVERS " 212(h) WAIVER OF INADMISSIBILITY " AGGRAVATED FELONY BAR
Negrete-Ramirez v. Holder, 741 F.3d 1047 (9th Cir. Jan. 21, 2014) (the aggravated felony bar to a waiver of inadmissibility under INA 212(h) for a noncitizen previously admitted to the US as a LPR does not apply to someone who adjusted status without leaving the United States: only non-citizens who entered the United States as lawful permanent residents are barred from eligibility to apply for waiver).

RELIEF " WAIVERS " 212(h) WAIVER OF INADMISSIBILITY " AGGRAVATED FELONY BAR
Negrete-Ramirez v. Holder, 741 F.3d 1047 (9th Cir. Jan. 21, 2014) (the aggravated felony bar to a waiver of inadmissibility under INA 212(h) for a noncitizen previously admitted to the US as a LPR does not apply to someone who adjusted status without leaving the United States: only non-citizens who entered the United States as lawful permanent residents are barred from eligibility to apply for waiver).

RELIEF " WAIVERS " INA 212(h) WAIVER " VIOLENT OR DANGEROUS CRIME " HARDSHIP
Rivera-Peraza v. Holder, 684 F.3d 906, *910 (9th Cir. Jun. 29, 2012) (As we make clear today, 1212.7(d) directs the agency to consider hardship to the alien and to his or her relatives.); following Mejia v. Gonzales, 499 F.3d 991, 995 (9th Cir. Aug. 24, 2007) (court of appeal expressly rejected contention that 8 C.F.R. 1212.7(d) altered or superseded the hardship standard of INA 212(h)(1)(B), 8 U.S.C. + 1182(h)(1)(B); regulation requires that extraordinary circumstances, such as exceptional and extremely unusual hardship, must exist for someone convicted of a violent or dangerous crime to be granted a waiver, whether a waiver of inadmissibility is sought under 1182(h)(1)(A) (the rehabilitation waiver) or (h)(1)(B) (the hardship waiver).

RELIEF"WAIVERS"212(H) WAIVER"LPR BARS NOT IMPERMISSIBLY RETROACTIVE
Peng v. Holder, 673 F.3d 1248 (9th Cir. Mar. 22, 2012) (the seven years continuous presence requirement for lawful permanent residents under INA 212(h) is not impermissibly retroactive when proceedings were begun after the effective date of IIRAIRA).

Tenth Circuit

RELIEF " WAIVERS " INA 212(h) WAIVER " AGGRAVATED FELONY BAR
Medina-Rosales v. Holder, ___ F.3d ___, 2015 WL 756345 (10th Cir. Feb. 24, 2015) (the aggravated felony bar to eligibility for a waiver of inadmissibility under INA 212(h), applies only to those persons with an aggravated felony conviction who became LPRs at the time that they lawfully entered the United States); but see Matter of Koljenovic, 25 I&N Dec. 219 (2010).

Eleventh Circuit

RELIEF " WAIVERS " INA 212(h) WAIVER " VAWA CANCELLATION
(BIA reasonably concluded INA 212(h) cannot be used to waive CMT bar to applicants seeking relief under INA 240A(b)(2)(A), VAWA cancellation).

RELIEF " ASYLUM " INA 209(c) WAIVER " VIOLENT OR DANGEROUS CRIME RELIEF " INA 212(h) WAIVER " VIOLENT OR DANGEROUS
Makir-Marwil v. Atty' Gen., 681 F.3d 1227 (11th Cir. May 22, 2012) (Matter of Jean standard for "violent or dangerous" crimes may be determined by either a categorical or factual analysis of the offense; IJ and BIA erred in failing to consider individual hardship, including country conditions, in determining that applicant would suffer exceptional and extremely unusual hardship).

RELIEF - INA 212(h) - CONTINUOUS RESIDENCE
Vila v. U.S. Attorney General, 598 F.3d 1255 (11th Cir. Mar. 10, 2010) (period during which noncitizen who entered without inspection was in United States, pursuant to approved I-140 visa and pending adjustment of status petition, could not be counted in determining the seven years lawful continuous residence prior to the initiation of removal proceedings).

RELIEF - INA 212(c) WAIVER
De la Rosa v. U.S. Attorney General, 579 F.3d 1327 (11th Cir. Aug. 20, 2009) (conviction of aggravated felony sexual abuse of a minor disqualifies respondent from eligibility to apply for a waiver of deportation pursuant to the former INA 212(c), since the aggravated felony ground of removal has no statutory counterpart in the grounds of inadmissibility under INA 212(a) of the Act), following Matter of Blake, 23 I. & N. Dec. 722, 723, 727 (BIA 2005).

BIA

RELIEF " WAIVERS " 212(H) WAIVER " AGGRAVATED FELONY BAR
Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012) (in removal proceedings arising within the jurisdictions of the United States Courts of Appeals for the Fourth, Fifth, and Eleventh Circuits, an aggravated felony conviction disqualifies an alien from relief under INA 212(h), 8 U.S.C. 1182(h) (2006), only if the conviction occurred after the alien was admitted to the United States as a lawful permanent resident following inspection at a port of entry); following in their jurisdictions only Bracamontes v. Holder, Nos. 10-2033, 10-2280, 2012 WL 1037479 (4th Cir.Mar. 29, 2012); Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); and Lanier v. U.S. Attorney General, 631 F.3d 1363 (11th Cir. 2011).

Other

ARTICLE " RELIEF " WAIVERS " HEIGHTENED 212(H) WAIVER DISCRETIONARY HARDSHIP STANDARD DEPENDS ON WHETHER THE UNDERLYING OFFENSE FACTS SHOW THE CRIME IS VIOLENT OR DANGEROUS
By Norton Tooby Inadmissibility for a conviction of a crime involving moral turpitude, which constitutes a violent or dangerous offense, cannot be waived under INA 212(h) absent exceptional and extremely unusual hardship or national security reasons. 8 CFR 1212.7(d). See discussion of same standard in Matter of Jean, 23 I. & N. Dec. 373 (AG 2002). See also N. TOOBY & J.J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS 24.29 (2012). A May 27, 2003 USCIS memorandum 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 noncitizens citizen or LPR spouse, child or parent. Memo, Yates, Acting Director of Operations, HQADN 70/23 (May 27, 2003), posted on AILA InfoNet at Doc. No. 03080717. Therefore, the relief can be granted if the applicant him- or herself suffers exceptional and extremely unusual hardship. See Samuels v. Chertoff, 550 F.3d 252 (2d Cir. Dec. 19, 2008) (BIA may have misapplied 8 U.S.C. 1212.7(d), requiring a showing of exceptional and extremely unusual hardship by noncitizens convicted of violent crimes, since it only considered hardship to the petitioners family, but not the petitioner himself.) The Ninth Circuit, in Rivas-Gomez v. Gonzales, 441 F.3d 1072 (9th Cir. Apr. 3, 2006), 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. It is thus clear that the immigration authorities can consider the underlying facts of the offense, and are not bound by the categorical analysis of its elements, when deciding whether the offense is a violent or dangerous crime. Torres-Valdivias v Lynch, 786 F3d 1147 (9th Cir. 2015), amending and superceding 766 F3d 1106. This means that even if the elements of the offense suggest that the crime is a violent or dangerous offense, this is irrelevant. The violent or dangerous trigger, for the enhanced hardship standard, is a part of the discretionary decision whether to grant 212(h) relief. Perez Pimentel v. Mukasey, 530 F.3d 321 (5th Cir. Jun. 4, 2008) (Attorney General's promulgation of 8 C.F.R. 212.7(d) provides a standard for the Attorney General's exercise of discretion under 8 U.S.C. 1182(h)(2), where Congress has not "directly spoken to the precise question at issue."). The discretionary decision, guided by this standard, thus depends on the underlying facts of the offense. Therefore, if the actual offense conduct is not violent or dangerous, the higher hardship standard cannot be applied, regardless of the elements of the offense. The term violent or dangerous crime has yet to be clearly defined. Online research shows dictionary definitions of violent are as follows: Websters: using or involving the use of physical force to cause harm or damage to someone or something. Oxford: Using or involving physical force intended to hurt, damage, or kill someone or something. Blacks Law Dictionary: Characterized or caused by violence; severe; assailing the person (and metaphorically, the mind) with a great degree of force. Similar research shows the dictionary definitions of dangerous are as follows: Websters: able or likely to inflict injury or harm. Oxford: Able or likely to cause harm or injury. Legal Dictionary: unsafe, hazardous, fraught with risk. Counsel can therefore argue, regardless of the elements of the offense, that the underlying offense conduct does not constitute either (a) a violent offense, or (b) a dangerous offense, and the higher hardship standard is not authorized by the regulation. From the context of the regulation, and the pairing of dangerous with violent, it is clear that the danger involved is the danger of physical injury, rather than a danger to some other value. For example, a danger to reputation, or a danger of offending someones sensibilities, would clearly be insufficient to meet this standard. If the immigration authorities do not allow consideration of the underlying facts of the offense, immigration counsel can petition the circuit court of appeals for review of a removal decision, arguing that the Board applied the wrong standard, an argument that the court has jurisdiction to consider. Samuels v. Chertoff, supra, 550 F.3d 252; see Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329 (2d Cir. 2006) (indicating that the court of appeals has jurisdiction to determine whether the Board used an erroneous standard in making a discretionary determination). Publications " Enewsletters " Articles Sept. 4, 2015

WAIVERS " INA 212(h) WAIVER " AGGRAVATED FELONY BAR FOR LPRS -- PRACTICE ADVISORY
All circuits to consider the question have held that plain language of the statutory aggravated felony bar to the waiver in INA 212(h) applies only to individuals who entered the United States as lawful permanent residents (LPR), not to those who subsequently adjusted to LPR status. Papazoglou v. Holder, 725 F.3d 790 (7th Cir. 2013); Hanif v. Atty. General of the United States, 694 F.3d 479, 487 (3d Cir. 2012); Bracamontes v. Holder, 675 F.3d 380, 386"87 (4th Cir. 2012); Lanier v. U.S. Atty. Gen., 631 F.3d 1363, 1366"67 (11th Cir. 2011); Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir. 2008); see also Hing Sum v. Holder, 602 F.3d 1092, 1097 (9th Cir. 2010)(holding respondent was admitted as LPR so later aggravated felony conviction barred 212(h) relief). Thus, the Third, Fourth, Fifth, Seventh, and Eleventh Circuits have held that INA 212(h) precludes a waiver only for those persons who, at the time they lawfully entered into the United States, had attained the status of lawful permanent residents. While the Ninth Circuit considered a slightly different question, its interpretation of the statute is consistent. See Sum, supra, at 1097, citing Martinez, supra, at 546, with approval. Therefore, while there is no Ninth Circuit decision directly on point, it is highly likely that the Ninth Circuit would decide this question consistently with the other five circuits. The client entered the United States on October 23, 1988, as a refugee, and has never left the country. His LPR status was granted on April 20, 1989. He was therefore never previously . . . admitted to the United States as an alien lawfully admitted for permanent residence . . . . 8 U.S.C. 1182(h)(2)(second to last sentence). Thus, the aggravated felony bar to eligibility for 212(h) relief does not apply to him. Nonetheless, the clients criminal history constitutes powerful equitable factors that may motivate the immigration authorities to deny the waiver.

WAIVERS " INA 212(h) WAIVER " CONTROLLED SUBSTANCES " INADMISSIBILITY " SINGLE MARIJUANA OFFENSE EXCEPTION
Matter of Davey, 26 I&N Dec. 37, 38-39 (BIA Oct. 23, 2012) (Arizona convictions of possession of marijuana, in violation of Ariz. Rev. Statute 13-3405(A)(1), and possession of drug paraphernalia (the plastic bag in which the marijuana was contained), Ariz. Rev. Statute 13-3415(A), constituted a single offense involving a small quantity of marijuana, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), since Congress meant offense in this statute to refer to the totality of an aliens specific acts on a single occasion, so the exception is available to a noncitizen convicted of more than one statutory offense, provided that each crime involved a single incident in which the alien possessed a small amount of marijuana for personal use.); following the reasoning of Matter of Martinez-Espinoza, 25 I&N Dec. 118, 124 (BIA 2009) (we concludedthat the term offense used in [INA] section 212(h) was best understood as refer[ring] to the specific unlawful acts that made the alien inadmissible, rather than to any generic crime.).

CONTROLLED SUBSTANCES - SINGLE OFFENSE EXCEPTION
A noncitizen who has pre-trial diversion (no plea entered) for a drug charge does not have a conviction for immigration purposes. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). If that person later pleads guilty to simple possession of 30 grams or less of marijuana, the noncitizen comes within the exception to deportability under INA 237(a)(2)(B), 8 U.S.C. 1227(a)(2)(B) for having a single offense.

The "single offense" language creates an exception to the "has been convicted" language in this statute. Since pre-trial diversion is not a conviction, the guilty plea to marijuana possession would still seem to come within the language of the single-offense exception. The Ninth Circuit in de Jesus Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. 2007), held that a noncitizen with a prior grant of pre-trial diversion is not eligible for treatment under Federal First Offender Act, 18 U.S.C. 3607(a), analogue, which makes the plea in the second case a conviction for immigration purposes. In de Jesus Melendez, however, the Federal First Offender Act itself bars eligibility for one who had previously been treated under 18 U.S.C. 3607, and this statute itself has a pretrial diversion provision. The fact that a pre-trial non-conviction diversion bars effective expungement does not mean that it would be considered a first "offense" under the first-offense exception for 30 grams or less of marijuana. Any ambiguity in the statute must be interpreted in favor of the noncitizen in deportation proceedings. Thanks to Dan Kesselbrenner.

RELIEF - WAIVERS - 212(H) WAIVER - CONTROLLED SUBSTANCES WAIVER ARGUABLY EXTENDS FROM POSSESSION OF MARIJUANA TO POSSESSION OF PARAPHERNALIA
A waiver of inadmissibility, under INA 212(h), for a single offense of possession of 30 grams or less of marijuana, should extend to waive a conviction of possession of drug paraphernalia. This argument is by analogy to the Ninth Circuit's extension of Lujan-Almendariz v. INS, 222 F.3d 728 (9th Cir. 2000) exception to "lesser offenses" like paraphernalia to similarly extending the marijuana 30-gram exception to lesser offenses such as possession of paraphernalia as well. See Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000). See also Escobar Barraza v. Mukasey 519 F.3d 388 (7th Cir 2008). Thanks to Holly S. Cooper and Jonathan Moore.

RELIEF " WAIVERS " 212(H) WAIVER " PRACTICE ADVISORY
The Immigrant Legal Resource Center has published a practice advisory about three aspects of a waiver of inadmissibility under INA 212(h) at ww.ilrc.org/criminal.php; scroll down to free on-line resources. The topics are which LPRs don't come within the LPR bar to 212(h); using 212(h) as a direct defense to a deportation charge; and 212(h) as an option when LPR cancellation is unavailable. Thanks to Katherine Brady, Senior Attorney, Immigrant Legal Resource Center.

RELIEF " WAIVERS " 212(H) WAIVER OF INADMISSIBILITY " VIOLENT OR DANGEROUS CRIMES " HARDSHIP
The Attorney General, in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), created a heightened INA 212(h) hardship standard for "violent or dangerous" crimes. This "violent or dangerous" category is different from the definition of aggravated felony "crime of violence" under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F). They are two distinct terms of art. The violent or dangerous INA 212(h) standard was incorporated into the regulations at 8 CFR 212.7. Note that this standard is not part of the "extreme hardship" analysis, but rather part of the discretionary evaluation, so hardship under this standard can include hardship to the applicant. See generally Samuels v. Chertoff, 550 F.3d 252 (2d Cir. 2008); Juarez-Gonzalez v. Attorney General, 388 Fed.Appx. 92 (3d Cir. 2010); Subah v. Attorney General, 256 Fed.Appx. 556 (3d Cir. 2007); Togbah v. Ashcroft, 104 Fed.Appx. 788 (3d Cir. 2004); Ali v. Achim, 468 F.3d 462 (7th Cir. 2007); Gahamanyi v. Baniecke, 2008 WL 5071098 (D. Minn.); Mejia v. Gonzales, 499 F.3d 991 (9th Cir. 2007); Rivas-Gomez v. Gonzales, 225 Fed.Appx. 680 (9th Cir. 2007); Matter of K-A-, 23 I&N Dec. 661 (BIA 2004). Thanks to Laura Murray-Tjan.