Waivers for Criminal Grounds of Inadmissibility

Posted on: May 21st, 2013
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In the August 24, 2001 edition of Siskind’s Immigration Bulletin, the ABC’S of Immigration section covered the criminal grounds of inadmissibility (http://visalaw.wpengine.com/01aug4/12aug401.html).  This week we finally resume the series with a discussion of the waivers available for these grounds of inadmissibility.

For many, many years, immigration law has provided a waiver if the criminal act was a purely political offense.  This provision applies both if the immigrant was unfairly targeted by the government for prosecution because of their race, religion, or membership in a political minority, and if the immigrant actually committed the offense, but did so to further a political goal.

Waivers are available for a number of juvenile offenses.  A person convicted of a single crime involving moral turpitude while under age 18 must be given a waiver if more than five years have passed since the commission of the offense.  Repeat offenders are not eligible for this waiver, nor are those who were convicted of more serious offenses.  The waiver is only necessary, however, if the juvenile was prosecuted as an adult.  By law, a criminal offense committed before age 15 cannot render a person inadmissible, and crimes committed between ages 15 and 18 will lead to inadmissibility only if the person was tried as an adult.

Waivers are also available for so-called “petty offenses.”  It is available if the immigrant has been convicted of only one crime, and the maximum possible punishment for the crime was not more than one year in prison, and the immigrant was sentenced to six months or less.  The offense must have been a crime involving moral turpitude, although the crime may be either a felony or a misdemeanor.

Finally, there is a general discretionary waiver based on the status of the immigrant rather than the crime.  The offenses coverd are crimes involving moral turpitude, multiple criminal convictions, prostitution or commercialized vice, assertion of immunity from prosecution, and simple possession of 30 grams or less of marijuana.  There are two ways to qualify for this waiver.  The first involves convictions either only for prostitution or that are more than 15 years old.  Under the second, if the immigrant is the spouse, child or parent of a US citizen or permanent resident, they may obtain a waiver if they show that the denial of the waiver would result in extreme hardship to the qualifying relative.

There are a number of people who are ineligible for this waiver.  Those convicted of murder, acts involving torture, and either conspiring or attempting to commit those offenses cannot obtain a discretionary waiver.  Permanent residents who have been convicted of an aggravated felony are not eligible, nor are permanent residents who have living in the US for less than seven years.

There are a number of other waivers dealing with very specific situations, but these are seldom used.