These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
212(h)
The Third Circuit has determined that an applicant for NACARA cancellation of removal cannot combine the application with a waiver under section 212(h) of the INA. Thus, an applicant convicted of marijuana possession will need to show 10 years of physical presence to qualify for NACARA cancellation.
The full text of Lopez v. Attorney General can be found here:
The Board of Immigration Appeals has determined that a respondent who enters the United States as a refugee, adjusts status one year later retroactive to the date of admission, and is then convicted of an aggravated felony, is not statutorily barred from seeking a 212(h) waiver.
The full text of Matter of N-V-G- can be found here:
The Second Circuit has rejected an equal protection challenge to 212(h) waivers for lawful permanent residents charged with inadmissibility (who are eligible for a stand-alone 212(h) waiver) and those charged with deportability (who must apply for the waiver in conjunction with an adjustment of status application). "Congress might have wanted to ensure that dangerous people, including those convicted of crimes of moral turpitude, remain outside the United States while their applications for discretionary relief are being considered. Congress might have wanted aliens seeking such waivers to do so from outside the United States in order to discourage them from attempting to fly under the radar' of the immigration authorities in the event that the discretionary waiver is ultimately denied. Congress might have rationalized that an alien who self-deports and returns through proper admission procedures provides immigration authorities a second bite at the apple to intercept and consider otherwise unlawful aliens. Congress might have rationalized that granting a waiver to those who self-deport and seek readmission at the borders provides an incentive for such aliens to voluntarily depart at their own expense."
The full text of Seepersad v. Sessions can be found here:
The Board of Immigration Appeals (BIA) had held that a lawful permanent resident is ineligible for a 212(h) waiver if he was inspected, admitted, and physically entered the country as a lawful permanent resident at any time in the past, even if such admission was not the alien’s most recent acquisition of lawful permanent resident status. In the instant case, the respondent was initially granted lawful permanent residence through consular processing in 1967, was convicted of an aggravated felony in 2007, re-adjusted his status in 2009, and was convicted of another aggravated felony in 2015. The BIA found him ineligible for a 212(h) waiver after the second offense, on the ground that he was previously inspected, admitted, and physically entered the United States as a lawful permanent resident in 1967, even though his current status as a lawful permanent resident was achieved in 2009 through adjustment of status.
The full text of Matter of Vella can be found here:
https://www.justice.gov/eoir/page/file/1003441/download
An applicant is ineligible for VAWA cancellation of removal for non-lawful permanent residents if he is inadmissible for commission of two crimes involving moral turpitude. The Eleventh Circuit has determined that a petitioner cannot use a 212(h) waiver to waive this ground of inadmissibility in order to make himself eligible for VAWA cancellation. In so doing, the court deferred to the Board of Immigration Appeals' decision in Matter of Y-N-P-.
The full text of Arevalo v. US Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201611458.pdf
The Ninth Circuit has held that individuals who enter the United States as conditional residents (i.e., those who obtain their conditional residency through consular processing and not adjustment of status) are subject to the aggravated felony bar in section 212(h) of the INA. In other words, such individuals are not eligible for a 212(h) waiver of inadmissibility if they have been convicted of an aggravated felony since their admission to the United States as conditional residents.
The full text of Eleni v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/24/13-73455.pdf
The petitioner had been convicted of several crimes involving moral turpitude and one controlled substance violation involving marijuana. He sought cancellation of removal for non-lawful permanent residents, arguing that he could waive the disqualifying effects of the convictions with a 212(h) waiver. The agency disagreed, and the Ninth Circuit affirmed, finding that the statute provided no basis for combining these two forms of relief.
The full text of Guerrero-Roque v. Lynch can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/09/14-72082.pdf
On appeal from a published Board of Immigration Appeals (BIA) case (Matter of Paek), the Third Circuit addressed the applicability of the aggravated felony bar in section 212(h) of the INA to non-citizens admitted to the United States as conditional permanent residents. The Third Circuit deferred to the BIA and found that the aggravated felony bar applies with equal force to those admitted as conditional residents as it to those admitted as non-conditional permanent residents.
The full text of Paek v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/143982p.pdf
The BIA's decision in Matter of Paek can be found here: http://www.justice.gov/sites/default/files/eoir/legacy/2014/09/17/3813.pdf
An applicant for special rule cancellation of removal must prove that he is not inadmissible for certain criminal offenses. In a decision earlier this week, the Ninth Circuit grappled with the situation of an applicant for special rule cancellation who had been convicted of crimes involving moral turpitude. The applicant argued that he could qualify for special rule cancellation in conjunction with a 212(h) waiver, which is used to wave the immigration consequences of certain types of convictions, including convictions for crimes involving moral turpitude. Deferring to the Board of Immigration Appeals' decision in Matter of Y-N-P-, the court determined that an applicant could for special rule cancellation could not rely on a 212(h) waiver to establish his statutory eligibility for cancellation.
The full text of Garcia-Mendez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/08/12-73430.pdf
Etumai Mtoched, a citizen of Malau, was admitted to the Commonwealth of the Northern Mariana Islands (CNMI) before U.S. immigration laws were extended to the CNMI. Mtoched was convicted of assault with a dangerous weapon under CNMI laws in 1994. In 2008, U.S. immigration laws were extended to include CNMI, and shortly thereafter, removal proceedings were initiated against Mtoched based on his conviction, which the Department of Homeland Security alleged qualified as a crime involving moral turpitude (CIMT). The Immigration Judge (IJ) found that the conviction was, in fact, a CIMT, and determined that applying the U.S. immigration laws to Mtoched was not an impermissible retroactive application of law. Mtoched indicated an intention to apply for a waiver under section 212(h) of the Immigration and Nationality Act (INA), but the IJ denied this request, finding that because Mtoched had been admitted to the United States, he needed to apply for the waiver in conjunction with an application for adjustment of status. On appeal, the Board of Immigration Appeals affirmed the IJ's decision regarding whether Mtoched's conviction qualified as a CIMT and whether he was eligible for a waiver under section 212(h) of the INA, but declined to address his retroactivity argument, finding that it was beyond the scope of its authority to address.
On appeal to the Ninth Circuit, the court determined that extending U.S. immigration laws to CNMI did not violate the CNMI's right to self-government. In addition, because Mtoched's conviction would have made him deportable under CNMI's immigration laws in effect at the time of his conviction, extending U.S. immigration law to him did not change his legal position. Since Mtoched did not demonstrate that he would have been eligible for any form of immigration relief under the prior laws, the extension of U.S. laws did not impair of any of his rights.
With regard to whether Mtoched's conviction qualified as a CIMT, the court noted that the statute could be divided into three distinct offenses: (1) threatening to cause injury; (2) attempting to cause injury; or (3) purposely causing injury. Because Mtoched was charged under the third offense, his conviction was a CIMT. In support of this conclusion, the court noted that non-fraudulent CIMTs almost always involve an intent to harm another person.
Finally, the court affirmed prior Board case law indicating that individuals admitted to the United States many not seek a stand-alone waiver under sectino 212(h) of the INA. As Mtoched was considered to have been admitted in nonimmigrant status, he could not seek the stand-alone waiver.
The full text of Mtoched v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/22/13-70295.pdf
In Matter of J-H-J-, the Board of Immigration Appeals (Board) withdrew its previous opinions finding that lawful permanent residents convicted of aggravated felonies are never eligible for a waiver under section 212(h) of the INA. The vast majority of circuit courts who had addressed this issue had disagreed with the Board, creating a lack of uniformity on the issue nationwide. "We will therefore withdraw from our decisions in Matter of Koljenovic and Matter of E.W. Rodriguez and hold that section 212(h) of the Act only precludes aliens who entered the United States as lawful permanent residents from establishing eligibility for a waiver on the basis of an aggravated felony conviction."
The full text of Matter of J-H-J- can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/05/12/3836_0.pdf
In a relatively brief opinion, the Seventh Circuit deferred to the Board of Immigration Appeals' decision in Matter of Rivas, which determined that a lawful permanent resident charged with deportability grounds cannot seek a stand-alone 212(h) waiver, but must apply for the waiver in conjunction with an adjustment of status application. The Seventh Circuit also affirmed an IJ's determination that a collateral attack on a criminal conviction is not necessarily good cause for a continuance.
The full text of Palma-Martinez v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D05-11/C:14-1866:J:Manion:aut:T:fnOp:N:1549550:S:0
Another crimmigration victory -- the 10th Circuit has joined many other circuits to find that an individual convicted of an aggravated felony is only barred from seeking a 212(h) waiver if he entered the United States as an LPR.
For more information about this issue, check out my post on the Second Circuit's decision on this issue: http://www.sabrinadamast.com/journal/2015/1/8/second-circuit-weighs-in-on-212h-waivers-for-aggravated-felons
The full text of Medina-Rosales v. Holder can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9541.pdf
