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Worst Case Scenarios, (Best Case Attorneys) – When Experience And Intelligence Trumps The Odds

New York Immigration lawyer Alena Shautsova

Waivers have become a big part of my practice. Individuals come to my office with multiple issues requiring multiple waivers, believing sometimes, nothing can be done... having gone to a handful of attorneys before, only to be told that they could not adjust their status/defend from removal. Usually, a friend refers them to my office… so they come in … and sit down, and we speak for roughly an hour. The worst case scenario that can come through my door is the case of an aggravated felony issue.

When a person is convicted of an aggravated felony , the general answer the person receives as to whether or not he/she can "fix" the immigration status through any means is "NO." However, there are circumstances when it is possible to successfully overcome the aggravated felony bar and in some other difficult situations. 212(h) waiver can help those who committed the following offences as grounds of inadmissibility:

  • Crimes involving moral turpitude (no limit to the number of offenses);
  • Engaging in prostitution;
  • A single conviction for simple possession or being under the influence of 30 grams or less of marijuana, or an equivalent amount of hashish;
  • Conviction of two or more offenses of any kind with an aggregate sentence imposed of at least five years; or
  • Asserting immunity against prosecution of a serious crime.

Also, the person applying for 212(h) has to be:

  • A spouse, parent, son or daughter of a U.S. citizen or permanent resident who will face extreme hardship if the applicant is removed;
  • A VAWA self-petitioner;
  • Inadmissible only under the prostitution ground; or
  • Inadmissible based upon a conviction or even t that took place more than 15 years before the current application. In these last two categories the applicant must prove that she is rehabilitated and her admission is not contrary to U.S. interests.

A violent and dangerous offense can be waived as well as a matter of direction. 8 CFR 212.7(d) provides that in the case of a violent or dangerous offense, positive discretion to grant a §212(h) waiver will not be exercised “except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant 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” See also Matter of Jean, 23 I&N Dec. 373, 373 (AG 2002).

Now, the only crimes of moral turpitude that will never be forgiven for immigration purposes are those involving:

  • Murder
  • Torture
  • Attempt or Conspiracy to Murder / Torture

Important: a person who adjusted status to one of a permanent resident, and is a permanent resident, can use 212(h) waiver for an aggravated felony conviction (the same as a person who has never been a lawful permanent resident). However, a person who was previously admitted to the US in permanent resident status, cannot use 212(h) for the same purpose. Another restriction on lawful permanent residents, is that if they are served with a Notice to Appear prior to living in the US for 7 years, they will lose their chance of 212(h) waiver.

While the government defines the extenuating bar of crimes of moral turpitude to those that are "violent or dangerous," no decision has been made outlining what crimes other than the ones above fall into this criteria (murder, torture and attempt to commit the same). As such, we have our grey area of law which goes case by case.

Take, for example, Nicholas Cage’s movie “Con-Air.” In the movie, Nicholas Cage’s character is convicted of manslaughter and sentenced to jail. If we were to say he was a lawful permanent resident and required a waiver to readjust his status, most would argue based on conviction alone, that he would not qualify for the waiver. If one digs a little further, however, and finds the reason why the guy was convicted of manslaughter: because his pregnant wife was being abused by a thug outside of the bar the couple had dinner at, Cage’s hero hit the abuser once (in the movie) and the guy died… one could determine that it was a fluke accident in which the thug was mostly at fault ( Cage’s hero probably didn’t have a very good Criminal Defense Attorney). In this case, USCIS most likely to grant the waiver, provided the applicant meets all other statutory requirements...

17 August 2015
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