Immigration Appeals Court Reverses Position on Deportation Waivers

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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  • S K Williams

    I wish this decision could be applied retroactively to apply to so many similarly situated who were summarily deported from US after substantial time spent in LPR status. So many have lost so much because of this unfortunate misinterpretation of the law.

  • conroegirl

    Sorry I can’t find any sympathy for people that find themselves in this situation Every LPR that finds themselves in deportation proceedings is a convicted felon. In this situation the LPR had lived in the U.S. for 25 years, why didn’t he naturalize? If his family is his priority he would have become a citizen or he wouldn’t have committed a crime.

    • sLawDog

      It is not true that LPRs in removal must be felons. You can be in removal proceedings as an LPR for a single CIMT committed within five years of entry, or two or more CIMTs at any time. INA § 237(a)(2)(A). In NY, riding the subway without paying the fare, a misdemeanor, is a CIMT (theft of services) with a possible sentence of one year. Misdemeanor drug offenses are often CIMTs, and any drug offense other than a single possession of less than 30g of marijuana, is grounds for removal. INA § 237(a)(2)(B).

      • conroegirl

        I stand corrected. Idiots that commit crimes within 5 years of entry are referred for deportation proceedings as well. Still can’t find a care to give.

    • Tafari Peart

      You have no idea what you are talking about and as such your response is typical. You hear the word felon and have no idea what it means in an immigration context.

      • conroegirl

        I’m afraid you don’t have the concept of “felon”. A felon is a person who has committed a crime. You just like other immigration advocates can’t seem to grasp the idea that America has enough criminals. Why import more?

  • Danny Henderson

    Mr. Hanif, for example. the Department of Homeland Security initiated removal proceedings against him based on a criminal conviction that resulted in his 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.
    Really? – He was incarcerated behind prison walls and cell bars, where his physical presence was not even with his family and/or bringing in the food, monetary wages or any other necessary items his family needed on a daily basis, but yet his deportation by the Department of Homeland Security (DHS) and this Bleeding Heart Judge has ruled that his deportation will (would) cause undo hardship for him and his family?
    Then Why?
    If he and his family are do worried about it causing a hardship, then why did he commit the crime which caused his incarceration in the first place?
    This is just another ploy by the bleeding heart Pro-Illegal Immigration people and Judges to allow all those Illegal Immigrants (including their Criminals) to remain in the U.S.

  • Rhenae Nunez

    Think cases must be treated for their uniqueness. I’m right now going through extreme difficulty after I was physically assaulted by my ex. Because he has a car, he went and filed a PFA before I could and got me evicted from the home we shared. He basically extorted me and then kicked me out. Even though I’ve complained about my situation and other forms of abuse I’ve experienced at his hands there is no relief!
    His card is expired and he hasn’t been able to renew it due to a criminal record 20 years ago. I’ve respected the law and don’t have a criminal record but the courts have allowed an illegal to lie and get his way. This person, even though he has family here does not deserve the privilege that so many fight and die for.
    I continue to seek justice.

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