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Criminal Waivers NJ Immigration Attorney

INA 212(a)(2) lists the criminal grounds of inadmissibility. Any person is inadmissible who (1) was convicted of or admits to a committing a “crime of moral turpitude” or controlled dangerous substance violation, (2) was convicted of two or offenses of any type and received aggregate sentences of five or more years, (3) trafficked or assisted in the trafficking of controlled dangerous substances, or knowingly benefited from a spouse or parent’s trafficking activities, (4) is coming to the U.S. to engage in prostitution, (5) previously departed the U.S. as a condition of receiving immunity from prosecution for a serious crime, (6) engaged in severe violations of religious freedoms as an official in a foreign government, (7) has engaged in trafficking persons or knowingly benefited from a spouse or parent’s trafficking, or (8) has engaged in money laundering or is coming to the U.S. to engage in money laundering.

The ground of inadmissibility for moral turpitude does not apply if the person seeking admission committed the crime before the age of 18 and at least five years have passed since the end of any confinement, or if the maximum possible penalty for the crime was less than one year and the person was actually sentenced for no longer than six months. INA 212(a)(2)(A). A noncitizen convicted of two or more offenses for which the sentence is at least five years will, however, still be inadmissible. INA 212(a)(2)(B).

Waivers on Criminal Grounds

In addition, admissibility may be waived for persons who have committed crimes moral turpitude or a single controlled substance violation involving possession of 30 grams or less of marijuana, persons who have multiple convictions of certain crimes, individuals engaged in prostitution, and those who received immunity from prosecution. Such individuals may qualify for a waiver if (1) the crime was committed more than two years before the application for admission or if it was a prostitution offense, the perpetrator has been rehabilitated, and a waiver would not be contrary to national security; (2) the individual is the spouse, parent, son, or daughter of a US citizen or permanent resident and denying admission would cause extreme hardship to the citizen or permanent resident; (3) the individual is seeking permanent residence after being battered by US citizen or permanent resident spouse or parent. INA 212(h). No waiver is available however if the crime was murder or involved torture. Waivers are discretionary and the decision to grant or deny the non-reviewable. Persons admitted by a 212(h) waiver may apply to adjust for lawful permanent resident status.

Criminal Waiver Hearings

Waivers of criminal grounds of inadmissibility are not available to lawful permanent residents who commit aggravated felony after being admitted permanent residents, or permanent residents who have continuously resided in the U.S. for fewer than seven years before the commencement of removal proceedings. INA 212(h). As a result, a permanent resident, who commits an aggravated felony and subsequently leaves the United States, whether removed or not, will be denied admission, but a nonimmigrant in similar circumstances may be able to obtain a waiver. In Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001), the court held that the unfavorable treatment of lawful permanent residents under this provision does not violate equal protextion because Congress could have a rational basis for considering permanent residents who commit crimes a greater threat to the country than nonimmigrant criminals.

 Waiver for Unlawful Presence  Crimes Involving Moral Turpitude
 Stay of Removal Restriction on Removal
 Aggravated Felony  Temporary Protected Status