212(h) & Adjustment Of Status To LPR

A person previously admitted into the United States becomes inadmissible as a permanent resident because of a criminal conviction. However, a person with a qualifying relationship may apply to adjust his or her status in proceedings and apply for a waiver under Section 245 of the Immigration and Nationality Act. The waiver forgives the conviction for immigration purposes and allows the person to adjust status. This process also applies permanent residents who are seeking to readjust their status because of a criminal conviction.

INA § 212(h) waives many criminal convictions if the alien meets the other requirements of the waiver. An INA § 212(h) application waives inadmissibility for convictions of crimes of moral turpitude; multiple crimes; prostitution; and, assertion of diplomatic immunity. However, section 212 (h) does not waive drug crimes -except for a single offense for possession of thirty grams or less of marijuana- or aggravated felony convictions.

Besides possessing a qualifying conviction, the alien must also meet other criteria. For an offense committed in the last fifteen years, the alien must be the spouse, parent, son, or daughter of a lawful permanent resident or US citizen, demonstrate that their qualifying lawful permanent resident or US citizen relative would suffer extreme hardship if the government deports the relative, and have seven years lawful residence in the United States before the commencement of removal proceedings.

The waiver is discretionary. As with cancellation of removal applications, immigration judges use an informal balancing test to weigh the evidence. Cancellation Of Removal & Adjustment Of Status (Sec. 1229b.)

Non-citizens-with or without permanent resident status, who are deportable from the United States may still be able to remain if an immigration judge has canceled their departure.

The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien -

(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,

(2) has resided in the United States continuously for seven (7) years (date of offense stops time of lawful residence) after having been admitted in any status, and

(3) has not been convicted of any aggravated felony.

Cancellation and adjustment for nonpermanent resident

The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien -

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title; and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

Crimes Involving Moral Turpitude

Examples of CIMTs: Murder and voluntary manslaughter, kidnapping, assault with intent to harm, assault with deadly weapon, child abuse, theft and larceny, fraud, rape, prostitution, arson, blackmail, counterfeiting, and willful tax evasion.

Immigration Consequences Of Criminal Conduct

All aliens, including lawful permanent residents, are subject to immigration consequences for violation of U.S. immigration laws. More than twenty-five sections of the Immigration and Nationality Act contain provisions which impose separate immigration consequences for criminal conduct. Ranging broadly, these sanctions impact issues such as admissibility to the U.S., deportation and removal, and eligibility for naturalization, discretionary waivers and other benefits.

A determination as to whether a specific crime involves moral turpitude is particularly troublesome for the practitioner. Neither the INA nor its legislative history provides a definition of a crime of moral turpitude. The BIA has followed a widely accepted interpretation that the term "moral turpitude" means an act of baseness, vileness, or depravity in the private and social duties owing to one's fellow man or society in general, contrary to accepted and customary rules, that is dependent upon depraved or vicious motives on the part of the alien. In deciding whether a crime involves moral turpitude, one must examine what the statute punishes, not the act committed. Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992).