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).

Moreover, there is a strong argument that the violent or dangerous phrase in the regulation is unconstitutionally vague, following the reasoning of Johnson v. United States, 135 S. Ct. 2551 (2015), which held that a crime of violence definition of the ACCAs residual clause, which closely tracks the crime of violence definition of 18 U.S.C. 16(b), is unconstitutionally vague. The Ninth Circuit, in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.2015), followed Johnsons reasoning and held that the crime of violence definition in 18 U.S.C. 16(b), is unconstitutionally vague.