Relief for Arriving Aliens

Posted on 10/19/2018 Sara BartosConsider this scenario: You obtain your green card through marriage and thereafter commit a retail theft or similar offense in the United States. You plead guilty, receive supervision, and complete your supervision satisfactorily. For the next several years, you travel abroad numerous times without incident, until your last entry when you are ordered to report to a deferred inspection appointment with a Customs and Border Patrol Officer. At the appointment, you are charged as inadmissible for committing a crime involving moral turpitude ("CIMT"), deemed an "arriving alien," and placed in removal proceedings. What recourse do you have?

The good news is that by virtue of the fact that you were deemed an arriving alien found to be inadmissible for a prior CIMT conviction, you may be eligible for what is called a "stand-alone" 212(h) waiver to excuse your conviction.

Under these circumstances, an individual in immigration court may be eligible to waive his CIMT inadmissibility (as well as certain other inadmissibilities) under section 212(h) of the Immigration Nationality Act if:

He has not been convicted of murder or criminal acts involving torture, or an attempt or conspiracy to commit these;
He has not been convicted of an aggravated felony since the date of his admission as an lawful permanent resident ("LPR");
He has been lawfully residing continuously in the U.S. for at least seven years before the date of the initiation or removal proceedings;
He did not previously receive relief under 212(h) or 240A (LPR cancellation of removal); and
He can show that his U.S. citizen or LPR spouse, parents, and/or children will suffer extreme hardship if his waiver is not granted and he must depart the United States. Note that if the commission of the offense making him inadmissible took place more than 15 years before the date of the application for a visa, admission or adjustment of status, he need not show extreme hardship to his U.S. citizen or LPR relatives. Rather, he need only show that his admission would not be contrary to the national welfare, safety, or security of the United States, and that he is rehabilitated.
Importantly, if the individual was charged as an arriving alien, he may apply for the 212(h) waiver without have to readjust his status (that is, without having to file a new application for adjustment of status). This is referred to as a "stand-alone" 212(h) waiver.

If you would like more information about the applicability of a 212(h) waiver to your circumstances, please contact Immigration Attorneys, LLP. We would be happy to review the facts of your case to assess whether this, or another form of relief, may be available to you.

The guidance in this blog is only general in nature and should not be construed as legal advice.