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Feb 12

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Can an LPR erase their criminal history with the 212(h) waiver?

A 212(h) waiver can be a powerful tool used in your immigration case to help you stay or enter the United States.  After all, it can erase your crime involving moral turpitude (“CIMT”), multiple criminal convictions, prostitution and commercial vice offense, and simple possession of 30 grams or less of marijuana.  Oddly enough, this remedy cannot be used by all non-citizens who meet the statutory conditions.

The Board of Immigration Appeals, which reviews decision by the Immigration Court, denied Ms. Negrete-Ramirez a 212(h) waiver.  Ms. Negrete-Ramirez is a non-citizen who was admitted to the United States on a visitor visa (B-2) and later adjusted her status to a lawfully admitted permanent resident (“LPR” or aka: green card holder) without leaving the United States.  Four years after becoming an LPR, Ms. Negrete-Ramirez pleaded guilty to two counts of committing a lewd act upon a child and removal proceedings were subsequently brought against her for this criminal ground of inadmissibility.

The Board denied Ms. Negrete-Ramirez a waiver for her criminal conviction because they found that she fell within the LPR exclusion to the 212(h) waiver:  ”[n]o waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if [] since the date of such admission the alien has been convicted of an aggravated felony . . . . INA § 212(h), 8 U.S.C. § 1182(h) (emphasis added).

But, why exclude Ms. Negrete-Ramirez who crossed the border into the U.S. as a visitor not an LPR?  Isn’t that what Congress intended when they said “admitted to the United States”? Where a non-citizen is unhappy with the decision given by the Immigration Court or the Board of Immigration Appeals, s/he can appeal to the highest court in that state.  That is exactly what Ms. Negrete-Ramirez did.  Although a Circuit Court does not have the power to hear all cases that non-citizens appeal, in this case, the 9th Circuit did accept Ms. Ms. Negrete-Ramirez’s case and deliberated over the following question:

Whether “admitted” as understood in § 212(h) includes Negrete-Ramirez’s post-entry adjustment of status?

To resolve this big question, the Court opted to apply the ordinary, contemporary, and common meaning of the term “admitted” versus the definition provided in the Immigration and Nationality Act.  The Court held in Ms. Negrete-Ramirez’s favor, finding that Congress intended the waiver to be used by LPRs who adjusted their status AFTER entering the United States.

So, what do we learn from this case?

  • Not all green card holders or LPRs are barred from using a 212(h)waiver,
  • Only LPRs who physically entered the U.S. as an LPR AND either: (1) were convicted of an aggravated felony after becoming an LPR, or (2) did not reside continuously in the U.S. as LPR for at least 7 yrs;
  • If you became an LPR after physically entering the U.S. and crossing the border, then you can still use the 212(h) waiver. 

 

*For more information, please see Juana Negrete-Ramirez v. Eric H. Holder, Attorney General (Case no. 10-17322, 1/21/14).

 

Permanent link to this article: http://blog.weismanlawyers.com/can-an-lpr-erase-their-criminal-history-with-the-212h-waiver/

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