WAIVER UNDER FORMER INA § 212(C)
Under former INA § 212(c) you could apply for a waiver of inadmissibility or deportability if you were a lawful permanent resident (i.e. green card holder) and had been convicted of certain crimes so long as you had resided in the United States for at least 7 years and had not served more than 5 years in prison for an aggravated felony as defined by INA § 101(a)(43). Unfortunately, former INA § 212(c) was repealed as of April 1, 1997 and replaced with cancellation of removal. Cancellation of removal is not available to you if you have been convicted of an aggravated felony. You may be wondering why we are discussing former INA § 212(c) if it was repealed more than 20 years ago. There are some people who remain eligible for former INA § 212(c) relief. The Supreme Court’s decision in INS v. St. Cyr, 553 U.S. 289 (2001) held this repeal did not apply to you if you pleaded guilty to a crime that made you inadmissible or deportable before April 1, 1997. In the Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), the Board of Immigration Appeals (BIA) extended the continued availability of relief under former INA § 212(c) even if you were convicted of a crime at trial before April 1, 1997. Relief under former INA § 212(c) is a valuable form of relief for those with old convictions for often serious criminal conduct such as drug-related offenses. Relief under former INA § 212(c) is discretionary, which means that even if you are eligible your application must warrant a favorable exercise of discretion. This means that to be granted such relief you must demonstrate your positive factors outweigh the negative factors present in your case. Positive factors include, but are not limited to, the following:
- Your family ties to the United States;
- Your involvement in the community including community service beyond what may have been imposed by the court;
- Your reformation and rehabilitation;
- The passage of time since your criminal conviction(s);
- Your employment history; and
- Potential hardship to your family members if the waiver is not granted.
- Your criminal record, including the nature, recency and seriousness of your crimes;
- Whether you are removal under any other grounds and if yes, the nature and circumstances underlying such grounds of removal;
- Whether you have other significant violations of immigrations laws; or
- Other evidence that supports shows you possess bad character or otherwise undesirable as a lawful permanent residence.