A section 212c waiver allows certain long time green card holders who have been placed in removal proceedings because they were convicted of a criminal offense to avoid being deported.
Congress repealed former section 212(c) of the Immigration and Naturalization Act effective April 1, 1997. However, the United States Supreme Court decided in 2001 that the repeal does not apply to lawful permanent residents who pleaded guilty to a crime before April 1, 1997 INS v. St. Cyr, 533 U.S. 289.
On December 12, 2011, the U.S. Supreme Court issued an important decision further protecting the rights of immigrants under the St. Cyr decision.
In Judulang v. Holder, the Supreme Court unanimously held that the government’s policy for deciding when lawful permanent resident immigrants may apply for 212(c) relief from deportation for pre-1996 guilty plea convictions deeming such immigrants ineligible for relief if the deportation ground at issue does not have a sufficiently comparable inadmissibility ground was arbitrary and capricious in violation of the Administrative Procedure Act.
The Court remanded the case for the government to adopt a new approach that does not arbitrarily deny long-term permanent resident immigrants such as Mr. Judulang from being able to apply for relief from deportation.
In 2012, the U.S. Supreme Court issued another important decision protecting the rights of immigrants with long ago criminal convictions to travel abroad without risking detention and removal upon their return.
In Vartelas v. Holder, the Supreme Court struck down the government’s retroactive application of a 1996 immigration law amendment that the government said allowed denial of re-admission and removal of lawful permanent residents who take short trips abroad even if their old convictions preceded the new law.
Such retroactive application of the 1996 amendment subjected immigrants with relatively minor offenses—many of whom were not deportable while inside the U.S. to detention and removal simply because they needed to travel to attend a funeral, visit a sick family member, or otherwise attend to family or other emergent business abroad.
In Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), the Board of Immigration Appeals held that relief under former INA section 212(c) is also available to otherwise eligible lawful permanent residents, even if they were convicted following a trial before April 1, 1997.
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The requirements to apply for and receive a 212c waiver include:
- You pled guilty to the crime prior to April 1, 1997
- You have been a lawful permanent resident for at least 5 years
- You are returning to a lawful, unrelinquished residence of at least 7 consecutive years
- You are not subject to deportation or removal on the grounds of terrorism or national security
- You are not unlawfully in the US due to a previous immigration offense
- You have not been convicted of a firearms offense or an aggravated felony offense for which you served over 5 years
You are ineligible to receive a 212c waiver if you have departed and are currently outside the US, you have illegally returned after deportation or removal, or you are present in the US without having been admitted or paroled.
It is important to note that the 212c waiver is a discretionary. Therefore, even if you are eligible to apply for a 212c waiver, the Immigration Judge will decide on a case-by-case basis whether or not to grant you this relief. The Judge will look closely at the balance of positive factors versus negative factors in your application.
Positive factors include family ties in the US, long time residence in the US, hardship to you and your family if you were deported, property ownership, business ties, demonstrated value and service to the community, genuine rehabilitation and evidence that you are person of good character.
Negative factors can include the nature, seriousness and recency of your criminal record and evidence that you are a person of bad moral character.
Before filing an application for relief through the 212c waiver you should consult an experienced immigration attorney about your case.
212c Waiver – Helpful Links
- I-191, Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (USCIS)
- ELIGIBILITY FOR A § 212(C) WAIVER AFTER JUDULANG AND ST. CYR (NLG)
- Deportation Defense Guide
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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