Section 212(h) Waiver


Section 212(h) of the Immigration and Nationality Act provides that the Attorney General may, in his discretion, waive the application of subparagraph 212(a)(2)(A)(I) (crimes involving moral turpitude), 212(a)(2)(B) (multiple criminal convictions), 212(a)(2)(D) (prostitution and commercial vice), 212(a)(2)(E) (certain aliens who have asserted immunity from prosecution), and 212(a)(2)(A)(i)(II) (an offense of simple possession of 30 grams or less of marijuana).

 

INA 212(h)(1)(A) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), and (E) of the Act may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that 1) the activities for which he is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of statues; 2) the admission would not be contrary to the national welfare, safety, or security of the U.S.; and 3) the alien has been rehabilitated. The Attorney General may also waive the grounds of inadmissibility under section 212(a)(2)(D)(i)-(ii) of the Act with regard to prostitution if the alien establishes to the satisfaction of the Attorney General that the alien’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the alien has been rehabilitated. INA 212(h)(1)(A).


INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who demonstrates that his removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter. In evaluating extreme hardship to a qualifying relative, factors to be considered include, but are not limited to: whether the qualifying relative has family ties to this country; the extent of the qualifying relative’s family ties outside the United States; conditions in the country of removal; financial impact of departure from this country; and significant health conditions, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999); see also INS v. Jong Ha Wang, 450 U.S. 139 (1981).


INA 212(h)(1)(C) allows the Attorney General to waive certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act for aliens classified under INA 204(a)(1)(A)(iii)-(iv) and (B)(ii)-(iii). To be eligible for the waiver, the alien must be a spouse, child, or parent of a U.S. citizen and the alien or a child of the alien must have been battered or have been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse. INA 204(a)(1)(A)(iii)-(iv). Under section 204(a)(1)(B)(ii)-(iii) of the Act, the spouse or child of a lawful permanent resident of the U.S. is also eligible for a waiver where the alien or the alien’s child has been battered or has been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse. Other conditions also apply to the granting of a waiver under INA 212(h)(1)(C). See INA 204(a)(1)(A)(iii)-(iv) and (B)(ii)-(iii).

 

The Attorney General, however, may not grant a waiver in the case of an alien who has been convicted of, or admits committing murder or criminal acts involving torture or an attempt or conspiracy to commit murder or a criminal act involving torture. INA 212(h). The waiver is also unavailable to an alien who has previously been admitted to the U.S. as an alien lawfully admitted for permanent residence if, since the date of such admission, he has been convicted of an aggravated felony or he has not lawfully resided continuously in the U.S. for a period of not less than seven years immediately proceeding the date of initiation of proceedings to remove him from the U.S. Id.; see also Matter of Pineda, 21 I&N Dec. 1017 (BIA 1997); Matter of Yeung, 21 I&N Dec. 610 (BIA 1997). But see Matter of Michel, 21 I&N Dec. 1101 (BIA 1998) (finding that alien not previously admitted to the U.S. as an LPR is statutorily eligible for a 212(h) waiver, despite being convicted of an aggravated felony). Further, even if the applicant demonstrates that he merits a grant of discretion under the waiver, he must also establish that he meets the terms, conditions, and procedures of the regulations promulgated by the Attorney General. INA 212(h)(2). Under 8 C.F.R. 1212.7(d), the Attorney General will not favorably exercise discretion in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which the alien clearly demonstrates that a denial of the waiver would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under INA 212(h)(2). 8 C.F.R. 1212.7(d). Matter of Jean, 23 I&N Dec. 373, 383 (BIA 2002).


Section 212(h) relief is available in deportation and removal proceedings in conjunction with an application for adjustment of status, where it may be used to waive inadmissibility that would otherwise preclude adjustment of status. See 8 C.F.R. 1245.1(f); Matter of Michel, 21 I&N Dec. 1101, 1104 (BIA 1998); Matter of Parodi, 17 I&N Dec. 608, 612 (BIA 1980); Matter of Barnabella, 13 I&N Dec. 42, 43-44 (BIA 1968). The 212(h) waiver is available nunc pro tunc, allowing the applicant to reapply for admission retroactively, which may effectively dispose of the charges against him. Matter of Ducret, 15 I&N Dec. 620 (BIA 1976); Matter of Vrettakos, 14 I&N Dec. 593 (BIA 1973). Finally, the Attorney General, in his discretion, must consent to the alien’s applying or reapplying for a visa, for admission to the United States, or for adjustment of status. INA 212(h)(2).

 

Lawful permanent residents seeking admission to the United States may also apply for section 212(h) relief, standing alone, in order to overcome a ground of inadmissibility that would otherwise preclude his or her admission. Matter of Abosi, 24 I&N Dec. 204, 206 (BIA 2007).

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