AQUINO & LOEW

March 13, 2008

The Department of Homeland Security (DHS) has made it clear that it is their priority to remove individuals from the United States who have been convicted of a crime.  This priority includes individuals with convictions that occurred many, many years ago without any recent problems whatsoever.  The 212(h) waiver is therefore a vital provision for individuals who have been convicted of an inadmissible or removable criminal offense seeking to remain in the United States. 

           
Section 212(h) of the Immigration and Nationality Act provides the Attorney General with discretion to waive certain criminal convictions that would otherwise prevent an individual from becoming a lawful permanent resident.  The law also provides a defense to lawful permanent residents faced with removal proceedings.  Under INA §212(h), an individual applying for permanent residency or seeking to prevent removal from the US may be granted a waiver for certain criminal convictions if one of the following is satisfied: (1) the crime is more than 15 years old from the date of applying for the waiver and the person has been rehabilitated; or (2) the individual can prove that a spouse, parent, or child would suffer “extreme hardship” if the individual is not allowed to obtain permanent residency or remain a permanent resident.

The §212(h) waiver is not available to those who have been convicted of a drug crime, unless it is for simple possession of 30 grams or less of marijuana.  The waiver is also not available to individuals who are already permanent residents if their conviction is an aggravated felony or they have not been lawfully residing continuously in the US for at least 7 years at the time removal proceedings are commenced. 

Additionally, for those who have been convicted of a “violent or dangerous” crime, the hardship factor is actually heightened so that the waiver can only be granted if the individual can prove that a spouse, parent, or child would suffer “exceptional and extremely unusual hardship.”

In determining hardship, the applicant must prove that the hardship is more than that typically encountered than when an individual is separated from their loved ones.  The typical factors that are considered when determining whether sufficient hardship exists are as follows: (1) extent of family ties in US that are either US citizens or permanent residents; (2) extent of family ties outside US; (3) political and economic conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such country; (4) financial impact of departure from US; (5) age of the individual (both at entry and at time of applying for the waiver); (6) length of US residence; (7) health of individual and qualifying family members; (8) possibility of obtaining permanent residence through another means; (9) community involvement; and (10) immigration history.

           
Typically, the DHS discovers that an individual has been convicted of an inadmissible or removable offense when an individual applies for permanent residency, US citizenship or a new green card due to expiration of a previous green card.  As well, a criminal check is also conducted when an individual seeks reentry to the US after a trip abroad.  The DHS is also informed whenever a non-US citizen is convicted of a criminal offense.

           
Accordingly, any individual with a criminal conviction that may subject them to removal proceedings should be fully knowledgeable when applying for an immigration benefit or simply traveling abroad.  Furthermore, it is always wise to consult with an immigration attorney before pleading to any criminal offense in order to determine whether a lesser criminal offense should be fought for so as to avoid possibly harsh immigration consequences. 

           
As the consequences are so severe, individuals who are faced with the daunting dilemma of having a criminal conviction must ensure that they are properly represented by an attorney intricately knowledgeable with the consequences of a criminal conviction and potential available relief.