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.
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.
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 criminal conviction.
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.
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