INA 212(C) WAIVER OF RELIEF
Under former 212(c) of the Immigration and Nationality Act, aliens placed in removal proceedings because of criminal could seek a waiver of those convictions, and thereby avoid removal. The statutory eligibility for this
1. the alien must have at least 7 years unrelinquished residence in the United States.
2. At least 5 years as a lawful permanent resident.
3. and could not serve more than 5 years in prison after being finally convicted of an offense.
Not only must the alien be statutorily eligible but the immigration judge has to balance the positive factors versus the negative factors of the alien's application. Some positive factors include the number of family members in the U.S., steady employment, affidavits or letters sent on behalf of the alien respondent et. al. Negative factors include any criminal conviction on the Respondent's record, the seriousness of the crime, the length of time between the commission of the crime and removal proceedings, among other things. It is important to note that a waiver under INA 212(c) is a discretionary waiver. It is within the discretion of the immigration judge to grant it after considering all the evidence.
In 1996, the 212(c) waiver was restricted by Section 440(d) of the AntiTerrorism and Effective Death Penalty Act and subsequently repealed upon passage of the Ilegal Immigration and Immigrant Responsibility Act of 1996. This waiver is therefore not available to aliens in removal proceedings after April 1, 1997 when final regulations were promulgated. However, if an alien has an old conviction prior to April 1, 1997, even if it is an aggravated felony, the 212(c) waiver is still available. Please feel free to contact this Immigration Lawyer John A. Nicelli Esq., he has over 30 years of experience in this process. Call now (212) 227-8020, make an appointment for a consultation.
Although IIRAIRA repealed 212(c) the Supreme Court ruled in the St. Cyr case, that it was not retroactive to convictions prior to the effective date of enactment. The Court reasoned that aliens in trials prior to 1996 may have entered into plea agreements, with the hope of applying for a 212(c) waiver in removal proceedings. Making the statute retroactive, the Court reasoned, would deprive these defendants of their rights, without due process. This can become a very complex process and you may want to have the experience of a good Immigration Lawyer with over 30 years of experience. John A.Nicelli Esq., Call (212) 227-8020.
Make an appointment for a consultation.