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Are Waivers Available to Lawful Permanent Residents With ?Aggravated Felony? Convictions Under the INA?

By Brian Harris

An issue of significant concern for some lawful permanent residents is the impact of a criminal conviction on their immigration status.  That is, could certain types of felonies subject those individuals to immediate removal proceedings, or is there still a waiver available to them under the Immigration and Nationality Act?  A waiver under the former Section 212(c) of the INA is available to those lawful permanent residents with ?aggravated felony? convictions who pleaded guilty or who were convicted after trial prior to April 24, 1996. (INS  v. St. Cry.)  Whether a waiver is available to an individual who availed himself of the right to trial depends on the federal circuit court of appeal with jurisdiction over the court. A waiver under 212(c) is available to lawful permanent residents with convictions for crimes involving moral turpitude who pleaded or went to trial prior to April 1, 1997.

When determining eligibility for Section 212(c) relief based on a plea, the starting point is the date that the plea was agreed to by the individual.  In many criminal jurisdictions, the plea is agreed to before sentencing. Sometimes the plea is orally agreed to by the defense and the prosecution prior to going to court and putting the agreement on the record.  The significant date is the date that the plea was agreed to by the parties, not necessarily when the criminal judge accepted the plea. A complete copy of the record of conviction should be obtained to determine the exact date of the plea agreement.  In addition, to be eligible for 212(c) relief, the individual must not have been convicted and served more than five years in prison after Nov. 29, 1990.  If the individual was convicted before Nov. 29, 1990, and served more than five years after this date, he or she is still eligible for 212(c) relief.   An individual who was convicted after Nov. 29, 1990, is ineligible for 212(c) relief if he has served more than five years in prison.

Lastly, to be eligible for 212(c) relief when the individual is charged under Section 237 or the former Section 241, the charge of removability must have a statutory counterpart in section 212.   An ?aggravated felony? under Section 237 may not necessarily have a statutory counterpart in Section 212.     Nevertheless an argument can be made for fitting many aggravated felonies into the definition of a crime involving moral turpitude in Section 212.   In general, in order to establish a claim under 212(c), the equities of granting the waiver need to outweigh the negative aspects of the particular case.  This needs to be done with the use of sufficient supporting documentation by an astute criminal defense or immigration attorney on behalf of the lawful permanent resident seeking the waiver under the former Section 212(c).  The facts of the particular case, including the lawful permanent resident?s prior arrest/criminal history, if any, could obviously affect his or her prospects of prevailing on the 212(c) claim.  That being said, a lawful permanent resident who is convicted of an ?aggravated felony? may be subjected to removal proceedings. However, the availability of the 212(c) waiver still offers him/her some glimmer of hope.

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
www.dmclaw.com

Full post as published by The Legal Intelligencer Blog on June 29, 2009 (boomark / email).