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New defense for permanent residents with aggravated felonies

Many lawful permanent residents convicted of aggravated felonies now have a defense to removal after the recent Ninth Circuit decision, Negrete-Ramirez v. Holder.  The court held that adjustment of status does not prevent aggravated felons from applying for waivers of inadmissibility under Immigration and Nationality Act § 212(h).  This overturns the government's earlier ruling that no lawful permanent residents convicted of aggravated felonies could apply for 212(h) waivers.  Furthermore, the court's reasoning should also eliminate a seven-year residency requirement for those lawful permanent residents who adjusted their status.

What does this mean? Who does the change in law help? This post helps to answer these questions, and provide some important cautions.

Please note- the court's decision is based on very technical legal analysis. While it is vital for any immigration attorney working on 212(h) issues to understand the court's reasoning, this post focuses primarily on the end result of the decision and who it helps.

What is admissibility, and why is it important?

INA § 212(h) provides a waiver of inadmissibility for some criminal violations. Understanding why it is important, especially for lawful permanent residents, first requires understanding what "admissibility" means in immigration law.

Generally, non-citizens trying to enter the United States must demonstrate they are "admissible", meaning they meet the legal requirements at Immigration and Nationality Act § 212 to be admitted.  Of special relevance here, many kinds of criminal convictions can make a non-citizen inadmissible.

Secondarily, admissibility is very important for foreign nationals who are already in the U.S. if they apply for lawful permanent residency without leaving the country. This process, called "adjustment of status", requires applicants to demonstrate they are "admissible".  That is, even though they do not physically leave the U.S., they generally have to meet the same requirements as someone coming to this country from abroad.

Admissibility and Lawful Permanent Residents in Removal Proceedings

Even though lawful permanent residents are generally allowed to live in the United States, those who have committed crimes often have to fight to remain in the country. If they travel abroad after a criminal conviction, lawful permanent residents may be found "inadmissible" at the border of a port of entry when they come back. They will normally be allowed to physically enter the U.S., but will be placed in removal proceedings to determine if they will be allowed to stay.

Also, many lawful permanent residents in removal proceedings confront inadmissibility issues without even leaving the U.S. Some lawful permanent residents placed in removal proceedings for criminal convictions will reapply for adjustment of status as a defense to deportation. Even though this sounds strange- lawful permanent residents are applying to "adjust" their status but remain residents- the new application for adjustment of status can overcome the violation which placed the resident in removal proceedings.

There is a catch, however, since applicants for adjustment of status must be admissible. Lawful permanent residents who wish to reapply for adjustment of status in removal proceedings are often inadmissible because of the criminal convictions which led to their removal proceedings in the first place.

Waivers of inadmissibility at INA § 212(h)

An inadmissible foreign national might be able to stay in the United States by applying for a waiver of inadmissibility. Some- but not all- grounds of inadmissibility can be waived, but those waivers have requirements which limit their availability.

The only waiver for criminal grounds of inadmissibility is at INA § 212(h). Most importantly, 212(h) can waive inadmissibility for crimes involving moral turpitude, but not most controlled substances offenses.

In addition to the other requirements of INA § 212(h), there is a special concern for lawful permanent residents. As applied by the government, lawful permanent residents could not apply for a 212(h) waiver if they had committed an aggravated felony or had not been a resident for at least seven years before being placed in removal proceedings.

Both the seven year requirement and aggravated felony bar meant that many lawful permanent residents placed in removal proceedings could not apply for a 212(h) waiver. This is a potentially a huge problem for lawful permanent residents because the main defense to removal for them is not available for aggravated felons and has a similar seven-year residence requirement.

This means that lawful permanent residents who have been convicted of aggravated felonies- which can include some relatively minor offenses which are not felonies under state law- often have no defense to their removal. Similarly, permanent residents with even more minor deportable convictions will be defenseless if they have not been residents long enough.

The Negrete-Ramirez decision, however, provides a lifeline to some lawful permanent residents. Now, adjustment of status does NOT trigger the aggravated felony bar. From the wording of the case, it also appears that adjustment of status does not trigger the seven-year requirement.

While the law in other circuits varies (many other circuits have cases similar to Negrete-Ramirez, but others do not), this change will now give a new defense to many lawful permanent residents in the Ninth Circuit who may have otherwise had no relief. Many lawful permanent residents already in removal proceedings will need to re-evaluate their options, and this is an important consideration for residents in criminal negotiations.

Notes of caution

While Negrete-Ramirez is a very important case, lawful permanent residents and their attorneys need to keep in mind some key cautions, including:

- Lawful permanent residents who obtained their residency after a consular interview abroad are still subject the seven-year and aggravated felony bars to 212(h);

- 212(h) does not waive most controlled substances or any drug trafficking offenses;

-It is not certain that lawful permanent residents who adjusted their status, then departed and re-entered the U.S. are exempt from the aggravated felony and seven-year bars. There are strong arguments they are, but this has not been conclusively resolved.

- This waiver only helps those who are otherwise admissible or eligible for adjustment of status or can get a waiver of other grounds of inadmissibility. For example, residents wishing to apply for adjustment of status, they still need an approved, current visa petition.

- With limited exceptions, 212(h) waivers are only available to applicants who demonstrate their removal would cause extreme hardship to a lawful permanent resident or United States citizen spouse, son, daughter or parent. Those without qualifying relatives will normally be unable to even apply for the waiver.

-Even for those who are eligible to apply, 212(h) waivers are tough to get and frequently denied. The "extreme hardship" standard requires suffering beyond what would result from a "typical" deportation.

Conclusion

Many lawful permanent residents now have a new defense to removal through a 212(h) waiver- even if they have been convicted of an aggravated felony or have not been a resident for seven years. Nonetheless, determining whether a lawful permanent resident is eligible for a 212(h) waiver, much less successfully obtaining one can be very challenging. Lawful permanent residents in removal or criminal proceedings should consult with an experienced attorney if they think they may benefit from a 212(h) waiver.

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