Immigration Appeals Court Reverses Position on Deportation Waivers

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14689247947_6629a1edfd_kIn a decision issued last week, the Board of Immigration Appeals (BIA) reversed course and decided that a subset of Legal Permanent Residents (LPRs) who have been convicted of certain crimes may now have an opportunity to avoid deportation by proving to an immigration judge that their removal would cause extreme hardship to their U.S. citizen or LPR family members. The case, Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015), accepts the reasoning set forth by the American Immigration Council and others, and holds that individuals who were not admitted at the border as LPRs but later became LPRs are able to obtain a 212(h) hardship waiver (referencing section 212(h) of the Immigration and Nationality Act) – frequently their only means to avoid separation from U.S. family members.

Prior to J-H-J-, the Board held that a person who became an LPR while living in the United States – a process called adjustment of status—was not eligible for a waiver of deportation. As a result, many individuals who had been living in the United States for years, and who had strong family and community ties here, were barred from applying for the waiver.

In its reversal, the BIA recognized that nine courts of appeals had disagreed with its position and, thus, to maintain uniformity in the application of the immigration laws, it had to reverse its interpretation of § 212(h): “Given the overwhelming circuit court authority in disagreement with [the BIA’s previous decisions] on the basis of the plain language of the statute, we will now accede to the clear majority view of these nine circuits.”

This decision carries real life consequences for many long-term residents. Take Mr. Hanif, for example. His win at the Third Circuit Court of Appeals demonstrated the consequences of the BIA’s former limits to 212(h) relief. Mr. Hanif had resided in the United States for more than 25 years when the Department of Homeland Security initiated removal proceedings against him based on a criminal conviction that resulted in four months of incarceration. He sought a waiver on account of the hardship his removal would create for his immediate family members, including his wife, two elderly parents, and U.S. citizen children. Under the BIA’s former interpretation of the statute, a waiver was not available to him. Now, others like Mr. Hanif will benefit from the BIA’s proper, and long overdue, interpretation of the law to protect immigrants like him from deportation.

In the future, perhaps the BIA will not insist on fighting a losing battle for this long, particularly when the stakes for LPRs and their family members are so high.

Photo by Phil Roeder.

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