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212 (C)

WAIVERS

WHAT IS 212 C WAIVER?

The 212(c) waiver makes a Lawful Permanent Resident (LPR), who is removable on the basis of criminal convictions, eligible to retain his or her status. A 212c waiver applicant must establish that he or she has been continuously resident for at least 7 years since his or her admission to the United States and, if convicted for an aggravated felony, a sentence of 5 years or more in prison was not served for that conviction. Section § 212(c) of the Immigration and Nationality Act (INA) is intended for LPR who are removable or deportable from the US, usually after the commission of a certain type of crime. If you are a LPR of the United States and you have been placed in removal proceedings due to criminal activity, you could seek a waiver of your convictions and avoid deportation. On November 29, 1990, the Immigration Act (IMMAct) amended section § 212(c) to ban aggravated felons from applying for relief under Section § 212(c) if they had served a term of imprisonment of at least 5 years. INA § 212(c) was repealed on September 30, 1996 by IIRIRA, effective April 1, 1997, but the U.S. Supreme Court in INS v. St. Cyr, decided June 25, 2001 that § 212(c) relief remained available to aliens who had pled guilty to crimes at a time when 212(c) would have been available to them. Certain LPRs can apply for discretionary relief under section § 212(c) of the INA, initially enacted in 1952. This type of relief is very specific, and is only available to persons who meet very limited eligibility requirements.

WHO IS ELIGIBLE FOR 212 C WAIVER?

The Board of Immigration Appeals (BIA) issued a decision on February 28, 2014, in Matter of Abdelghany, which made thousands immigrants who were ordered deported, eligible to INA § 212(c). In Matter of Abdelghany, the BIA abolished the so-called “comparable grounds” rule that disallowed Section 212(c) relief from deportation to an individual if the DHS charged him or her with a ground of deportability that did not have a comparable ground of inadmissibility

Following Abdelghany, immigrants in removal proceedings for pre- April 24, 1996 convictions have to explore whether they are eligible for § 212(c) relief under the new rules. In Matter of Abdelghany, the BIA established that relief under former INA section 212(c) is also available to otherwise eligible LPRs even if they were convicted following a trial before April 1, 1997.

Thus, a LPR who has accrued 7 consecutive years of lawful unrelinquished domicile in the U.S. and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for discretionary relief under INA § 212(c), 8 U.S.C. § 1182(c) (1994), unless:

the applicant is subject to the grounds of inadmissibility under INA §§ 212(a)(3)(A), (B), (C), or (E), or (10)(C), 8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or
the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

A LPR who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under INA § 212(c) unless:

the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996; or
the applicant is subject to the grounds of inadmissibility under INA §§ 212(a)(3)(A), (B), (C), or (E), or (10)(C); or
the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

A LPR who is otherwise eligible for relief under former INA § 212(c) may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.

The eligibility to apply for a waiver is based on the type of crime you committed and the date on which you were convicted.

The BIA held § 212(c) is available to waive all grounds of deportability except those comparable to the grounds of excludability (inadmissibility) excluded from 212(c) (war criminals, terrorists, and saboteurs). INA § 212(c) thus is available to waive even convictions that would not make an immigrant inadmissible for a Crimes Involving Moral Turpitude (CIMT) or controlled substance offense.

CANCELLATION OF REMOVAL

Congress eliminated the 212(c) waiver in 1996, replacing it with LPR cancellation of removal, INA 240A(a). The 212(c) waiver is the pre-cursor to its modern day equivalent of cancellation of removal for lawful permanent residents.

You may be eligible to have your removal cancelled under section 240A(a) of the (INA) if:

You have been a permanent resident for at least five 5 years;
Prior to service of the Notice to Appear, or prior to committing a criminal or related offense referred to in sections 212(a)(2) and 237(a)(2) of the INA, or prior to committing a security or related offense referred to in section 237(a)(4) of the INA you have at least seven 7 years continuous residence in the United States after having been lawfully admitted in any status; and
You have not been convicted of an aggravated felony.

Former section 212(c) of the Act provides that an alien lawfully admitted for permanent residence who temporarily proceeds abroad voluntarily and not under an order of deportation, and who is returning to a lawful unrelinquished domicile of 7 consecutive years, may be admitted to the United States in the discretion of the Attorney General despite the applicability of certain grounds of exclusion specified in INA section § 212(a).

The requirements for a 212(c) waiver are somewhat easier to meet than those for LPR cancellation of removal.

As already said, in April 1997 Congress eliminated 212(c) relief and replaced it with cancellation of removal. One major difference between them is that those convicted of aggravated felonies are not eligible for cancellation of removal. However, there are some people who remain eligible for INA 212(c) relief. In certain limited circumstances, persons in removal proceedings may still be eligible to apply for relief under the earlier provisions of 212(c).

Repealed in 1996 as part of IRIIRA, the 212(c) waiver was given a second-life in 2001 by the Supreme Court. In INS v. St. Cyr, the Court faced the issue of whether an LPR with a pre-1996 deportable conviction could apply for 212(c) relief in his or her later post-repeal removal proceedings. The Court opined that an LPR who pleaded guilty to his or her pre-1996 conviction could still apply for 212(c) relief following the 1996 repeal.

The status of those LPRs who were convicted of their pre-1996 offense after a trial remained unclear.

On December 12, 2011, the Supreme Court issued a unanimous decision in Judulang v. Holder, the latest chapter in the strange afterlife of former section 212(c), which granted the Attorney General discretion to waive the inadmissibility of certain qualifying LPRs.

A decision by the Ninth Circuit Court of Appeals has reopened a path to relief from removal for some Green Card holders convicted of crimes. The court held that the repeal of 212(c) relief was impermissibly retroactive as applied to persons who were convicted after trial of aggravated felonies prior to April 24, 1996. The court had previously taken the position that 212(c) relief was only available to persons who had been convicted pursuant to a plea.

The BIA issued a decision on February 28, 2014 that makes Section 212(c) relief available to thousands of immigrants who were ordered to be deported or are presently deportable for criminal convictions.

REQUIREMENTS FOR 212 (C) WAIVER

Summing up, the requirements to apply for a 212(c) waiver include:

You are in removal or deportation proceedings;
You pled guilty to the crime prior to April 1, 1997;
You have been a LPR for at least 5 years;
You have held LPR status for at least 7 years before applying for relief, with lawful domicile continued to accrue during exclusion and deportation proceedings until a final order was entered by an immigration judge or the BIA;
At the time of your criminal plea, you were eligible to seek a 212(c) waiver;
You are not unlawfully in the US due to a previous immigration offense;
You have not been convicted of a firearms offense or an aggravated felony offense for which you served over 5 years.
For convictions entered between November 30, 1990 and September 30, 1996, you have not served more than 5 years imprisonment for one or more aggravated felony offenses.
If you served 5 years or more for the removable or deportable crime, you pled guilty on or before November 29, 1990, or
If your criminal plea occurred between April 24, 1996 and April 1, 1997, you were not convicted of an aggravated felony, a controlled substance offense, espionage, treason, or two or more Crimes Involving Moral Turpitude;
You are not subject to deportation or removal on the grounds of terrorism, national security, and international child abduction;

You may be eligible for relief under former INA section 212(c) unless you:

Were convicted of one or more aggravated felonies;
Were convicted of an offense involving a controlled substance under 21 U.S.C. 802;
Were convicted of certain offenses involving rearms or destructive devices;
Were convicted of 2 or more CIMT if each crime is an offense for which a sentence of one year or longer may be imposed;
Were convicted of any of the following offenses, including conspiracy or attempt to commit any of them:
1. Sabotage, espionage, treason or sedition, if a sentence of imprisonment for at least 5 years may be imposed;
2. Any violation of 18 U.S.C. 871 or 18 U.S.C. 960;
3. Any violation of the Military Selective Service Act;
4. Any violation of the Trading with the Enemy Act; or
5. Any violation of INA section § 215 or 278.
Are inadmissible to the United States under INA section § 212(a)(3) (security related grounds) or (10)(C) (international child abduction); or
Failed, after proper notice, to appear for your deportation, exclusion, or removal proceedings; failed to comply with a voluntary departure order; or otherwise violated immigration laws relating to deportation proceedings.

Non-citizens granted 212(c) relief are allowed to retain their permanent resident status in the US. If you meet the statutory requirements to seek 212(c) relief, your case will be adjudicated under a discretionary balancing test of negative and positive factors.

Positive factors include family ties to the US, residence of long duration, hardship to you or your family if relief were denied, service in the US Armed Forces, property or business ties in the US, community service, and rehabilitation from past criminal offenses.

Negative factors include the nature of the underlying ground of removal, existence of other crimes, the presence of significant immigration violations, and the nature and seriousness of such offenses.

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