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Another Court Expands Access to Crime-Related Waiver for Certain Green-Card Holders

The U.S. Court of Appeals for Ninth Circuit ("Ninth Circuit"), the federal appeals court that reviews the decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings held in Western states including California, Nevada, Arizona, and Washington, explicitly added itself yesterday to the list of five other circuits that have found that adjustment of status, i.e., applying for and acquiring a Green Card here in the U.S. as opposed to obtaining one via application to a consular post abroad, does not necessarily amount to an "admission" for purposes of eligibility for a waiver of crime-based grounds for inadmissibility. The decision, Negrete-Ramirez, may not have even been the most news-worthy decision of the day by the Ninth Circuit, which also separately ruled on the same date that jurors in federal-court trials could not be dismissed simply for being homosexual.

Nevertheless, the decision certainly has a tremendous impact on thousands if not tens of thousands of Green-Card holders who find themselves removable from the U.S. because of certain criminal convictions but who had been previously admitted to the U.S. in some other status prior to adjusting to the status of a Green-Card holder. As a way of background, the waiver at issue falls under Section 212(h) of the Immigration & Nationality Act, wherein a foreign national can have waived the immigration consequences of one or more certain criminal convictions if s/he can prove various requirements. The waiver can even be used to waive almost all Aggravated Felonies, which are specifically defined categories of convictions that the Immigration & Nationality Act deems to be of the most egregious of criminal acts. If the waiver is granted, then the foreign national may receive a Green Card or otherwise keep the Green Card s/he already has.

However, for several years, the BIA has strictly interpreted the eligibility exception relating to foreign nationals who already have Green Cards. That exception pertains to Green-Card holders who, like the woman at issue in Negrete-Ramirez, have been convicted of at least one Aggravated Felony since receiving his/her Green Card or who have not lawfully resided continuously in the U.S. for at least seven years before being placed in removal proceedings. Therefore, many Green-Card holders are not even eligible to receive the waiver because they have already been once granted a Green Card. While some may initially think that such an exception is unconstitutional because it treats non-Green-Card holders including undocumented individuals who are not affected by it better than Green-Card holders, such equal-protection-based challenges have failed because federal courts have determined that the U.S. Congress had not acted unreasonably in limiting access to the waiver to those foreign nationals who have not already been granted the privilege of Green-Card-holder status and who have not therefore betrayed that privilege so soon after receiving such status by committing serious crimes.

The Ninth Circuit's decision does not decide differently and does not even address the issue of equal protection but instead, as with the other circuits that have ruled the same way, simply follows the plain reading of Section 212(h). That plain reading led the Ninth Circuit to interpret the exception to apply only to foreign nationals who did not have an "admission," such as on a tourist or other nonimmigrant visa, prior to their being granted Green-Card-holder status. Specifically, even if one has already been granted a Green Card and assuming the other requirements are met, s/he can still pursue a waiver under Section 212(h) if such previous grant of a Green Card both:

(A) was through adjustment of status, as opposed to consular processing, AND
(B) was preceded by an admission to the U.S. in some nonimmigrant or other non-Green-Card-holding status.

Specifically left out of this decision are those foreign nationals whose first admission to the U.S. was on an immigrant visa and those foreign nationals who entered the U.S. without having been admitted and then later nevertheless obtained a Green Card through, for example, an amnesty program. Because of the complexity of the requirements, foreign nationals who feel they may be affected by this decision, even if they have already been ordered removed for previously having been found ineligible for a Section-212(h) waiver, should seek skilled immigration-related legal counsel immediately.