Adjustment Of Status

Adjustment of Status (INA §245) is the process by which an alien already present in the United States can become a legal permanent resident of the United States. Aliens with crimes who are otherwise eligible to adjust their status in the United States may require a special waiver. The waiver is not available to aliens who have been convicted of most drug crimes other than simple possession of less than 30 grams of marijuana. Non-drug related crimes involving moral turpitude can be waived. Non-drug crimes that do not involve moral turpitude do not have to be waived as they do not in general trigger a ground of inadmissibility. When an alien is convicted of only one crime involving moral turpitude for which the maximum sentence is under a year and the actual sentence is under 180 days, no waiver is needed. This is called the petty offense exception.

The waiver itself is codified at INA §212(h) and is requested by the filing of a form I-601. INA §212(h) has two distinct parts. The first part relates to offenses that are over fifteen years old which can be waived with no threshold hardship requirement. The second part relates to newer convictions and requires a showing of extreme hardship to qualifying relative.

Though the term " aggravated felony" is generally irrelevant in the adjustment context because it is not a ground of inadmissibility, an aggravated felony will render certain aliens ineligible for the 212(h) waiver. The Courts have limited that ineligibility to aliens who entered the United States as legal permanent residents.

Practitioners should also be aware of 8 CFR §212.7(d) which raises the burden in 212(h) cases when the alien has been convicted of "violent or dangerous crimes".

Criminal grounds of inadmissibility involving violent or dangerous crimes. The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act. (Added effective 1/27/03; 67 FR 78675)

The following is an excerpt of a brief discussing issues relating to adjustment of status with an (h) waiver as relief from removal:

INA §212(h) states, in pertinent part:

"The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if- ...

"in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien;...

"No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States."

In the instant case, the Respondent is the husband of a United States Citizen. An adjustment application is on file before this Court along with a Form I-601 requesting the above waiver. Accordingly, as long as he is not subject to the exclusions listed in the final paragraph, he should be permitted to present hardship evidence in a hearing on the merits of his request for a waiver under INA §212(h).

In Negrete-Ramirez v. Holder, 741 F.3d 1047 (2014), the Circuit Court held that:

"...the plain language of § 212(h) unambiguously demonstrates that Negrete-Ramirez's post-entry adjustment of status to an LPR after her admission to the United States as a visitor does not constitute an admission in the context of § 212(h). Only noncitizens who entered into the United States as LPRs are barred from eligibility to apply for the §212(h) waiver. Negrete-Ramirez is not barred from applying for a § 212(h) waiver." Id. at 14.

Negrete-Ramirez changed the understanding that aliens admitted for lawful permanent residence and subsequently convicted of an aggravated felony were rendered ineligible for a 212(h) waiver by drawing a distinction between aliens who were Legal Permanent Residents at the time they entered the United States and aliens who adjusted their status later. Negrete-Ramirez does not explicitly discuss whether the rule applies when, as here, an alien is admitted as a refugee and his legal permanent resident status is accorded retroactively to the date of entry. The Circuit Court did, however, explain that "The definition refers expressly to entry into the United States, denoting by its plain terms passage into the country from abroad at a port of entry." Because there was no physical entry after the retroactive grant of permanent resident status, 212(h) would still be available according to Negrete-Ramirez.

Thus, the Respondent herein was not, as a matter of law, "admitted to the United States as an alien lawfully admitted for permanent residence." Therefore, the limitations that would flow to an alien so admitted are not applicable to the Respondent. Those limitations are (1) the aggravated felony bar; and (2) the requirement of 7 years continuous residence.

Though decided before Negrete-Ramirez and thus reaching a different conclusion, the Board of Immigration Appeals has accepted the fact the 7 year rule applies only to an alien "admitted to the United States as an alien lawfully admitted for permanent residence." Matter of Matter of Koljenovic, 25 I&N Dec. 219, 200 (BIA 2010)["The issue presented in this appeal is whether the respondent 'has previously been admitted to the United States as an alien lawfully admitted for permanent residence' and must therefore satisfy the 7-year lawful continuous residence requirement of section 212(h) of the Act to be eligible for a waiver."]