shutterstock_81188971For more than five years, the Department of Justice (DOJ) has defended a policy that deprives long-term lawful permanent residents (LPRs) of the opportunity to apply for a waiver that would allow them to remain in the United States. The waiver—known as the 212(h) waiver (referring to section 212(h) of the immigration statute)—permits permanent residents who were convicted of certain crimes to avoid deportation if they can show that their U.S. citizen or lawful resident family member would suffer extreme hardship if they were deported. The policy at issue—announced through a Board of Immigration Appeals (BIA) decision—significantly narrows the group of LPRs who are eligible for this waiver. Many of those LPRs who have been excluded from applying for the waiver have gone to court. To date, the count is LPRs – 6, DOJ – 0, the most recent decision coming just last month. Yet, despite an obviously flawed BIA decision, DOJ continues to defend it, at great expense to LPRs and their families.

The 212(h) waiver is particularly important because it is one of the few remaining situations in which an immigration judge can consider all aspects of the noncitizen’s life, such as family ties, length of time in the United States, and rehabilitation, as weighed against the person’s wrongdoing. In contrast, as a result of immigration laws enacted in the mid-1990s, immigration judges largely have been stripped of their ability to act like judges and make individualized determinations about whether deportation is appropriate. In far too many cases, a crime, even a nonviolent one, can lead to automatic deportation and banishment from the United States. Given the limited avenues immigration judges have to ensure that the punishment fits the crime, it is difficult to comprehend why DOJ insists on defending a rule that not only limits immigration judge’s discretion, but also, according to 6 courts, is unlawful.

The technical legal issue in these cases focuses on a provision in the waiver that excludes individuals who were admitted to the United States as LPRs and who subsequently committed an aggravated felony. The BIA has interpreted this bar to include all LPRs who have committed aggravated felonies, regardless of whether they were LPRs when they entered the United States or became permanent residents only after they had entered. The courts all agree that the bar on the 212(h) waiver only applies to the first group of LPRs (i.e., those who initially entered as LPRs). They have unanimously rejected the BIA’s broad reading of the bar, explaining that it imposes a limit on eligibility for a 212(h) waiver beyond that which Congress included in the statute.

Unfortunately, this protracted fight over who is eligible for a 212(h) waiver is not simply a battle over words. It can have real-life consequences for long term permanent residents. For example, Robert Michel Stanovsek first came to the United States on a visitor visa in 1990. Later that year, while living here, he became a lawful permanent resident through his marriage to a United States citizen. They have been married for over 23 years and have six children, all U.S. citizens. He now is facing deportation from the United States based on a single crime, a theft offense. His only chance to remain in the United States is if an immigration judge grants him a 212(h) waiver. Under the BIA’s restrictive ruling, he is not eligible to apply for the waiver. Mr. Stanovsek’s case currently is on appeal before a federal court.

Over the past five years since the the first federal court struck down the BIA decision, the BIA’s policy has been binding in all immigration courts in jurisdictions where the federal court has not yet ruled on the issue. Mr. Stanovsek is fortunate that he was able to retain a lawyer and has brought his case to court. Countless others, however, have not been able to do so, and as a result, have been deprived of the opportunity to apply for a 212(h) waiver, both because of where they live and because DOJ has refused to accept that the federal courts are correct and the BIA wrong. Now that a clear majority of the courts of appeals has spoken, DOJ should withdraw its continued opposition to the court’s reading of § 212(h) and right this wrong.