The 212(c) waiver is a defense to removal proceedings for certain permanent residents who are at risk of losing their green cards due to old criminal convictions.  Applicants can also file “affirmatively” if they are not in front of an immigration judge, but want to prevent deportation and/or apply for citizenship.

This powerful waiver allows permanent residents to remain in the United States despite serious criminal convictions. Congress attempted to eliminate the waiver during the last major immigration reform 1996, but the Supreme Court decided in the 2001 case “INS v. St. Cyr” that it wasn’t fair to take away this waiver for people who might have relied on it when they pleaded guilty to crimes before Congress ended it.

212(c) is available to an applicant who can show:

  • That she is eligible for deportation because she pleaded guilty or was convicted at trial for a crime before April 1, 1997;
  • That she has been a lawful permanent resident for at least 5 years;
  • That she has a “lawful, unrelinquished domicile” in the United States for at least 7 years (in other words, that she has lived in the US for 7 years);
  • That she has not been convicted of certain disqualifying offenses with a sentence of 5 years or more;
  • That she “merits a favorable exercise of discretion.” In other words, she must convince the judge that she deserves to stay in the US even though she has a criminal record.

This waiver is more generous than other defenses like the I-601 / 212(h) hardship waiver for certain criminal offenses, because it can waive crimes involving moral turpitude and drug offenses that are not covered by the I-601, and because it does not require a showing of hardship to the applicant or any relatives.

If the noncitizen is applying in removal proceedings (immigration court), a judge will decide the case after a trial (“individual hearing”). At the trial, the judge will review the documents the applicant and the prosecutor have submitted. The attorney helps the applicant and witnesses speak to the judge about the case, and offers legal argument for why the applicant qualifies and deserves to win. A prosecuting attorney representing Immigration and Customs Enforcement (ICE) usually opposes the case and cross-examines each witness, trying to convince the judge that she should deny the case and deport the applicant.  If the judge denies the case, she usually orders the applicant deported.  If she approves the case, the applicant becomes a permanent resident.

If the noncitizen is not in removal proceedings, the application and evidence are filed with USCIS with form I-191.

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For more information on how Siskind Susser can help you with Family Immigration and Naturalization, call us at 800-343-4890 (U.S.) or 901-682-6455 (International).

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