Waivers of Criminal Grounds Inadmissibility/Removal
ATLANTA IMMIGRATION LAWYER
WAIVERS FOR CRIMINAL GROUNDS OF INADMISSIBILITY
There are two circumstances where you may need a waiver for a criminal
ground of inadmissilibty. First, if you are attempting to enter the United
States legally in immigrant status or seeking to adjust your status to
legal immigrant. Second, if you are already a green card holder, and you
are arrested and/or convicted of a crime. Of course, both of these scenarios
assume that you are not already a United States citizen.
APPLYING FOR AN IMMIGRANT VISA
Section 212(h) of the Immigration and Nationality Act provides a waiver
for a criminal ground of inadmissibility known as a “crime involving
moral turpitude”. Examples of these types of crimes include, but
are not limited to, theft, extortion, embezzlement, burglary, fraud, aggravated
battery, domestic violence, sexual battery and other crimes that fall
into the category of crimes involving moral turpitude.
Drug crimes also make you inadmissible, however, Section 212(h) will only
waive a single possession of marijuana under 30 grams. For those applying
for visas, any other drug offense generally will bar admission.
To be eligible to receive the benefit of a 212(h) waiver of inadmissibility,
you must demonstrate that not being admitted will cause extreme hardship
to either your spouse, parent, or child who is a United States citizen
or Lawful Permanent Resident. Extreme hardship is hardship that is above
the expected hardship to one’s relatives when their family member
is not permitted to be admitted into the United States or must return
to their country.
GREEN CARD HOLDER FACING DEPORTATION
In most cases, if you are a green card holder facing deportation for a
criminal conviction, you will be looking to apply for Cancellation of
Removal for Permanent Residents. This “waiver” of sorts falls
under Section 240(A) (a) of the Immigration and Nationality Act and provides
a second chance to someone who is inadmissible or removable based on a
The applicant for Cancellation of Removal must:
Be a lawful permanent resident for at least five years;
Be physically present in the United States for a period of 7 years after
having been admitted in any status (short absences are permitted)
Not be convicted of an “aggravated felony”
Once the above three requirements are met, you may apply for Cancellation
of Removal before an Immigration Judge at the Atlanta Immigration Court.
Unlike, Section 212(h) relief, Cancellation of Removal does not require
that you demonstrate hardship to a relative, although it can be considered
as a factor. The Immigration Judge will weigh the positive factors against
the adverse factors in your case and make a decision based on the evidence
presented at a hearing as to whether you are granted Cancellation of Removal
and are permitted to retain your green card and remain in the United States legally.
In certain cases where the criminal conviction occurred prior to April
24, 1996, you may be eligible to ask for relief under Section 212(c) of
the Immigration and Nationality Act. Note that this section is no longer
in the law but was effective in the former version of the Act before it
was amended in 1996. The Supreme Court of the United States ruled that
those people who relied on the availability of Section 212(c) relief when
making decisions about their criminal case, should not be penalized now
that the relief has been repealed. Therefore, for those persons who have
convictions on or prior to April 24, 1996, and who now face removal or
deportation, they may take advantage of a waiver that no longer exists
in the law.
Like Cancellation of Removal, the Immigration Judge will weigh the positive
factors against the adverse factors. Unlike Cancellation of Removal, however,
you may apply for Section 212(c) relief even if you have been convicted
of an “aggravated felony’ in most cases.
It is important to consult a competent, professional and honest Atlanta
immigration attorney to analyze your immigration issue as there are exceptions
and loopholes to these sections of the law and one mistake can cause your
deportation from the United States.
Call us now to make an appointment for a free in-office consultation.