Waivers in Removal Proceedings
Some individuals may qualify for certain waivers before the Immigration Judge. These waivers either restore their lawful permanent resident status or enable them to adjust their status before the Immigration Judge. Such waivers can be found at Section 212(c), 212(h), 212(i), or 237(a)(1)(H) of the Immigration and Nationality Act.
Section 212(c) of the Immigration and Nationality Act was officially repealed by Congress on April 1, 1997. Nevertheless, the 212(c) waiver is still available to lawful permanent residents who were convicted of certain crimes prior to April 1, 1997.
What are the requirements for a 212(c) waiver?
- You are a lawful permanent resident;
- You have resided in the U.S. for at least 7 years either as a lawful permanent resident or a lawful temporary resident under the amnesty or Special Agricultural Workers program;
- You have not been convicted of one or more aggravated felonies and as a result of that felony or felonies served 5 years or more in jail or prison (in total). See page 8 that follows for a description of some aggravated felonies. AND
- You have not been convicted of a crime related to firearms or destructive devices;
- You are not charged with making an illegal entry into the United States.
A 212(h) waiver is a waiver that is normally used in conjunction with adjustment of status. One can use it alone if they are a green card holder and traveling into the United States and placed into removal proceedings. In both cases, the standard is the same. It is normally used for people who have criminal convictions and are inadmissible to the United States.
What do I file?
A 212(h) waiver is applied for on Form I-601. You have to demonstrate that it would be an extreme hardship to a parent, child, or spouse who’s either a U.S. citizen or lawful permanent resident. If you can demonstrate that it’s an extreme hardship to any one or all of those people, then the immigration judge will look at discretionary factors to see whether or not should be should be allowed to stay in the United States.
USCIS, through policy guidance and case law, has identified five broad hardship factors, 7 or categories, that may support a finding of hardship:
*Family ties and impact;
*Social and cultural impact;
*Health conditions and care; and
In the December 2016 hardship guidance, USCIS identified certain “Particularly Significant Factors” that “weigh heavily” in favor of a finding of extreme hardship.
The Particularly Significant Factors are more specific than the more general hardship factors above and carry more weight. The Particularly Significant Factors are as follows:
*Qualifying Relative previously granted Iraqi or Afghan Special Immigrant Status, T nonimmigrant status (“T visa”), or asylum or refugee status;
*Family member’s disability (Qualifying Relative or other family member);
*Qualifying Relative’s military service;
*DOS Travel Warnings or Alerts advise against travel to foreign country of relocation;
*Substantial displacement of care of applicant’s children.
What if I am already a permanent resident, I am in proceedings, and I am being charged with an aggravated felony?
There is a mechanism to re-adjust status to permanent residence and file a 212(h) waiver at the same time. The Board of Immigration Appeals, in Matter of J-H-J-, 26 I.&N. Dec. 563 (BIA 2015), accepted the proposition that a permanent resident who received his residence through adjustment of status and was later convicted of an aggravated felony may seek a waiver of inadmissibility under Immigration & Nationality Act sec. 212(h).
*This form of relief is especially helpful to those who are barred from filing for cancellation of removal because they are being charged with being convicted of an aggravated felony.
*In some cases, a person convicted of an aggravated felony that does not relate to drugs will be able to apply for a § 212(h) waiver, for example with an application for adjustment of status.
The question of whether an immigrant can benefit from a 212(h) waiver should be analyzed by an experienced immigration attorney.
The 212(i) waiver is generally used to waive the effects of fraud or willful misrepresentation by an alien in seeking a visa, admission to the United States, or some other immigration benefit. For example, an alien who gained entry to the United States by misrepresenting his identity to an immigration officer would need a 212(i) waiver to adjust status before the Immigration Judge.
What is the legal standard applied for a fraud waiver?
An applicant must demonstrate that his or her qualifying relative (or the applicant himself or herself, if a VAWA self-petitioner) would suffer extreme hardship if the applicant were refused admission to or removed from the United States as a result of the denial of the waiver.
The finding of extreme hardship experienced by a qualifying relative (or the VAWA self-petitioner himself or herself) is the first positive factor for consideration. The underlying fraud or willful misrepresentation itself is the first negative factor to consider. The nature, seriousness, and underlying circumstances of the fraud or willful misrepresentation may influence the weight given to this negative factor. Considerations include, but are not limited to:
*The facts and circumstances surrounding the fraud or willful misrepresentation;
*The reasons and motivations of the applicant when the fraud or willful misrepresentation was committed;
*Age or mental capacity of the applicant when the fraud was committed;
*Whether the applicant has engaged in a pattern of fraud or whether it was merely an isolated act of misrepresentation; and
*The nature of the proceedings in which the applicant committed the fraud or willful misrepresentation.
The 237(a)(1)(H) waiver is generally available to lawful permanent resident aliens who obtained their green card through some kind of fraud or misrepresentation. For example, an alien who obtained his or her green card as the unmarried daughter of a lawful permanent resident, but who was actually married at the time of the visa application, might be able to seek a 237(a)(1)(H) waiver before the Immigration Judge.
To seek a 237(a)(1)(H) waiver, the applicant must usually be the spouse, parent, son or daughter of a U.S. citizen or lawful permanent resident. Additionally, the applicant generally cannot have been subject to any other grounds for denial of the green card (besides the fraud or misrepresentation in question) at the time the green card was issued.
The waiver is not filed on any official USCIS form but is filed directly with the immigration judge.
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