Lawful Permanent Residents: Cancellation v. Waiver

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Many of my clients are permanent residents, meaning they are green card holders. Unbeknownst to many green card holders, they can and are subject to (potential) deportation. If you have a green card, you are not a US citizen can you can be deported!!! The most common scenario I see is an LPR adult who came to the US as a young child with his/her parents and has lived here with this status ever since (in some of my cases almost 30 years). If your parents naturalized (became US citizens) while you were still a minor (under 18), you may have been automatically naturalized. If they did not, then it is up to you to naturalize. If you think you may be a US citizen, you should call an immigration attorney. If you or someone is detained by ICE, you should contact the new hotline operated by ICE – (855) 448-6903 – and an immigration attorney.

For LPRs who find themselves in removal proceedings, there are many ways that she can seek relief from removal. This blog covers two types of relief that have similar requirements but very different application – a prime candidate for confusion: Cancellation of Removal for LPRs and a Waiver of Inadmissibility as applied to LPRs. Both of these provisions are much broader than discussed here, but I have limited this to LPRs.

Any reference to statutes is to the Immigration and Nationality Act (INA) unless otherwise stated, which can be found on the USCIS website.

§ 240A(a) Cancellation of Removal for LPRs
– lawfully admitted for permanent residence for not less than 5 years,
– resided in the United States continuously for 7 years after having been admitted in any status, and
– not been convicted of any aggravated felony

§ 212(h) Waiver of Inadmissibility (for LPRs)
– resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings,
– not been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture,
– not been convicted of an aggravated felony, and
– denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter
NOTE: this section may also apply to aliens who are only inadmissible based on a conviction of prostitution or are VAWA petitioners and to non-LPR aliens

Waiver of Certain Issues
Each of these sections “waives” certain problems with the alien’s status (which the alien necessarily has if she is in removal proceedings). § 240A(a) is simply a cancellation of the proceedings, which does not actually waive the issues, but rather gives the alien a “get out of jail free” card (though it is more of a “get out of trial free” card). The issues remain on the person’s record, but are overlooked at the time to give her a second chance.

Alternatively, § 212(h) actually waives the issues for future proceedings. However, § 212(h) only waives certain criminal activities and does not cover other potential issues, such as unlawful presence. There are other waivers for other issues, which will likely show up in later posts. § 212(h) only waives crimes involving moral turpitude (immoral crimes), prostitution and commercialized vice, and serious criminal activity where the alien has asserted immunity. (Needless to say, the CIMT issues are the most common.)

Criminal Convictions
The easiest similarity first – both forms of relief require that the applicant not have been convicted of an aggravated felony. These are the crimes that are considered more serious and are listed at § 101(a)(43). The § 212(h) waiver additionally requires that the alien not have been convicted of, or admitted to committing, murder or torture. These will most likely also be aggravated felonies, so we forgive the redundancy.

Permanent Residence
One confusing similarity is the requirement of 7 years of residence in the United States. § 240A(a) requires that the 7 years be continuous from the date of first entry into the US without becoming inadmissible or deportable (see Stop-Time Rule below). § 212(h) requires that the 7 years be continuous immediately prior to the date of proceedings. While these requirements seem similar, they have this large difference, often a determining factor for eligibility.

Stop-Time Rule
The Stop-Time Rule applies to § 240A(a) only, which says that although the alien may have been present in the US as an LPR for many years, she may not reach the 7 year requirement if she committed any criminal offenses listed under § 212(a)(2) because such a conviction stops the clock. Oddly, this applies only to the 7 year requirement, but not the 5 year requirement. Receiving a Notice to Appear (the initiation of removal proceedings) also stops the clock.

With § 212(h), only the Notice to Appear stops the clock because the residence requirement is for the 7 years immediately preceding the Notice and necessarily the alien committed the crimes in that time or before.

Qualifying Relative/Hardship
Another major difference between these forms of relief is § 212(h)’s requirement that the LPR have a qualifying relative that would suffer extreme hardship if he or she is not allowed to remain in the US. Qualifying relatives are parents, children, and spouses of the LPR who are either US citizens or LPRs themselves. Proving extreme hardship is is exceptionally difficult because the DHS has since raised the bar to “exceptional or extremely unusual hardship” thus requiring more than simply the loss of companionship and secondary income. To make matters worse, in my experience, the adjudication of extreme hardship is arbitrary and somewhat of a lottery based on which immigration officer reads your petition.

Deportability v. Inadmissibility
Perhaps the most important difference between these two forms of relief is their applicability to LPRs. § 212(h) can apply to non-LPRs, for which there is a slightly different set of rules (arguably easier). For a non-LPR to apply for Cancellation of Removal, she would apply under § 240A(b) with an entirely different set of requirements.

§ 212(h) and § 240A were likely set up as mirroring forms of relief applicable to different circumstances (although my legislative history knowledge is weak at best). § 212(h) is applicable only as a waiver of inadmissibility, meaning that it can only be applied to a person applying for status or reentry. It is not available to an LPR who is charged with deportation. Rather, it can only be applied to an LPR if (1) the LPR travelled outside the US and is requesting reentry at the border but is thereafter charged with being inadmissible based on a crime committed prior to her departure from the US (thus retroactively waiving the prior offense, also called nunc pro tunc), or (2) the LPR is deportable but is attempting to re-adjust to a new LPR status based on another form of eligibility (such as a family petition).

For LPRs who are simply in deportation proceedings and do not have an opportunity to re-adjust, their option is only § 240A(a) Cancellation of Removal. Cancellation is only available when the alien is in removal proceedings, whereas the § 212(h) waiver can be applied for by anyone seeking admission, whether inside or outside the US. § 212(h) applications are generally filed concurrently with a petition for Adjustment of Status (to get a green card) but can be filed alone when the LPR is applying for reentry to the US and is charged as inadmissible.

Sources:
Huffington Post: U.S. Immigration And Customs Enforcement Launches Hotline For Detained Undocumented Immigrants
USCIS: Biological or Adopted Children Residing in the United States
NLADA: 7-Year Cancellation of Removal: INA § 240A(a)
NLADA: Waiver of Inadmissibility under INA § 212(h)

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