Board of Immigration Appeals Expands 212(h) Waiver Eligibility


The Board of Immigration Appeals has finally given in to the overwhelming weight of the opinions of nine circuit courts of appeals (there are only 12 of them) and accepted the proposition that a permanent resident who received his residence through adjustment of status and was later convicted of an aggravated felony may seek a waiver of inadmissibility under Immigration & Nationality Act sec. 212(h).  In Matter of J-H-J-, 26 I.&N. Dec. 563 (BIA 2015), the BIA withdrew two precedent decisions, Koljenovic and E.W. Rodriguez, and changed its tune: “Given the overwhelming circuit court authority in disagreement with Koljenovic and E.W. Rodriguez on the basis of the plain language of the statute, we will now accede to the clear majority view of these nine circuits.”

Under the Board’s decision, it is now national law that a permanent resident who obtained his status through adjustment of status is not barred from seeking a 212(h) waiver due to conviction for an aggravated felony.  Given that this was already the law in nine circuits and only the eighth circuit had held that such individuals were ineligible for the waiver, it is tempting to ask what is the big deal?

First, it makes a huge difference to the people living in the Eighth Circuit (North and South Dakota, Iowa, Minnesota, Nebraska, Missouri, Arkansas)  as well as those who live 620px-US_Court_of_Appeals_and_District_Court_map.svgin the First Circuit (Massachusetts, Maine, New Hampshire, Rhode Island, Puerto Rico), which had not weighed in on the issue.  For individuals in those ten states, the BIA’s decision in E.W. Rodriguez foreclosed 212(h) availability to all permanent residents convicted of aggravated felonies.

Second, now that the Board has accepted the availability of 212(h) waivers for certain permanent residents, this is now the law that U.S. Consulates worldwide will have to apply.  Under the law as it stood before today, a permanent resident deported for an aggravated felony could never hope to return as a green card holder because they would not qualify the 212(h) waiver when they applied for an immigrant visa abroad.  The consulates had taken the position that an individual who had been granted permanent residence and convicted of an aggravated felony was ineligible for a 212(h) waiver.  Under the new BIA decision, former permanent residents who were deported due to aggravated felonies may be able to seek a 212(h) waiver to reunite with families in the U.S.  This is not to say that they will get it, but being able to apply gives them a chance.

Third, this shows what creative and committed lawyering can accomplish.  Today’s decision is the culmination of lawyers bringing cases challenging the Board’s interpretation across the country.  It required coordination and perseverance.  That hard work will have the benefit of helping many more families stay together and, perhaps, even reunite some.

We have had success in immigration court seeking the 212(h) waiver for permanent residents convicted of aggravated felonies and hope that this expansion allows us to bring that relief to many more families across the U.S.

24 thoughts on “Board of Immigration Appeals Expands 212(h) Waiver Eligibility

  1. i was deported one year ago my 3 kids live in usa 1 is usa citizen AND 2 RESIDENT PERMANENT I HAVE MI USA RESIDENT 1996 UNTIL I WAS DEPORTED FOR AGGRAVATE FELONY DO I HAVE ANY CHANGE TO APPLY FOR 212 H

    1. Not clear yet. We would be happy to discuss in a consultation, which you can schedule by calling 202-644-8600.

  2. Hello I need your help, my husband was deported 15 years ago for aggravated felony for receipt of firearm, I did not know him when this happened I came down for vacation to the Dominican Republic and I met him here I’ve been going back and forth to the United States so that our relationship will last we’ve been together for 12 years legally married and have 2 kids one which I lost here in the Dominican Republic after a day of being born she was a premature baby it was very hard and I could have had her in the United States but I decided for him to be there for her birth now we have one child together and one which he has raised I have really bad anxiety And can’t take living here any longer I keep getting the same virus here over an over the H.pylori,  which last time I had to go to the United States and get It treated because I was losing a lot of I have it again. Is there anything that I can do?? What are the fees involved? I am an American citizen and so are our kids. 

    Thank you, 

    Vanessa Espinal

  3. My case one the ones which help with the fight for the 212h waiver in the 8 cir.
    Shaun Matso Roberts vs Eric Holder
    May 15,2015
    And March 2014
    I am in Nassau, Bahamas mentally not stable no family nothing just trying to live day by day. I do need your help to go home to my family please. My number 242-462-4640 or magic jack 718-245-6054.
    Thank you if you can its is and has been very scary here.

  4. Good evening, I would like to ask if I qualify for this relief I was deported in 2006 on an aggravated felony charge to Tijuana, Mexico. I was an LPR since 1982. I fought my case for ten years in all courts and still could not get a relief (212h). My wife and kids(3) are all U.S citizens. I would like to thank you in advance if you can give me some sort of information, regarding this new law.
    Thank you

    1. There may be an option to seek the 212(h) waiver from abroad. Please contact our office to schedule a consultation. 202-644-8600. We can do it over the phone or Skype.– Ava

  5. hi my name is alexis iwas deported may 7 2013 i was charge for identity theft i use a credit card only used $200 on the card was sentence to 1 year prison but the 1 year was suspended got provation for 2 years i was doing good staying out of trouble i have 4 children that r american citizen havent ben able to see them for 3 years now would like to see if i can qualefied for the waiver to be reunated with my kids n wife what can i do please tell me my kids are my life and would like to be with them my youngest son is 3 years old and i havent seen him once only i pictures

  6. I was an green card holder for more then 18 years.
    Entered usa in 1989 under my mother passport
    I was charged with burglary 2degree nonviolent case only 1 year and more jail time that makes me an aggravated felon
    Do I have any chance to apply for (212)h…?

  7. Hi my name is Albert. I received my green card in 1986 through amnesty through my mother. At that time I was 10 yrs old. As an adult I committed and aggravated felony 245a (domestic violence). I was deported in 2001. I have 3 kids in the U.S. who are all citizens. I currently reside in a border city in Mexico. I would like to know if 212(h) Waiver Eligibility would be an option for me. Thank you.

  8. Hello I came to the us in 92 I have 2 aggravated felonies both are assult in the 3rd I will be marrying a citizen this Sunday and we also have a 3 year old son clearly born in the us I served 8 months in jail for one of my offenses and 2 for the other immigration never picked me up but now I am trying to renew my green card since I came out of jail I have aquire my ged and have turned into a family man my release was in may of 2012 will I be arrested when I go for biometrics appointment I already send my application and I read of ppl getting told to take their arrest record with them to the appointment I didn’t get that notice am in the clear or should I lawyer up and how good are chances of staying I’ve only paid taxes 3 years and I am planning on returning to school how good are chances?

  9. Hello I am a green card holder who was living in NY, however i was convicted of 963,960- conspiracy to import cocaine, Sentence 1Y&1D W/5Y SRT. I was sent to Jamaica in 2010 and now its 2016, All my family resides in the USA plus my son 21yr who was born there, Can i be considered for a waiver

    1. There is no waiver for drug trafficking offenses. The only possibility is seeing if NYS would allow you to change your plea or provide you with some type of pardon.

  10. Hello there, I was a LPR in ’81,convicted & deported in ’98 for narcotics,the paper they gave me said 10yrs b/c it wasn’t an AF,10yrs had passed & my moms who’s a USC filed for me,the petition was approved.Through word of word & lawyer’s as well,said I can’t returned b/c there’s no waiver for narcotics. 1st of all is that true? Why did they approved the petition if I’m inadmissible? My mother who’s is old now have the fake sense that I’ll returned,I never broke the news to her.I don’t think she can take it any more.Can that 212(h) help me?

    1. There is no waiver for a controlled substances offense other than a single offense of possession of 30 grams or less of marijuana. It may be necessary to see if you can obtain some type of relief from the state court that convicted you. We would be happy to discuss. To schedule a time, please call 202-644-8600.

  11. Hello Ava I am a LPR fighting Deportation have 4 us citizens have 2 felonies all under a year can I aply for new 212(h) or van I change a plea deal

    1. It depends. We would need more information. Please feel free to contact our office at 202-644-8600 to schedule a time to chat. Thanks!

  12. Hello Ms. Benach, I know that there is no relief for possession and selling of marijuana that is more than 30 grams, but on your comment to another person here you mentioned that the state court that gave the conviction can offer a relief. Anyway, do you know of any people that have obtained such relief thru the state court that issue the aggravated felony? If so, can that happen even if the felony happened more than 30 years ago in Florida? what are the chances of getting a waiver or pardon? Thanks for your prompt response to my comment

    1. That is a tough situation. I think you need to find a top notch criminal attorney in Florida who knows how to work through their court system. It may not be possible, I dont know- that is a question of Florida state law. I would ask a Florida criminal attorney.
      Ava Benach

  13. Hello Ava,
    My husband entered the USA in10/2010 on as a lawful conditional permanent resident and we filed to removed (i750) the conditions 2 years later– it is 10/2016 and they just tell me to wait because i751 can be lengthy (fours yrs+)and there are no updates in the system for removal of conditions..I am a US Born citizen and so are our 3 and 5 years old boys. My husband was arrested and charged with firearm trafficking 7/2016 and signed of on a plea deal with the prosecution for less jail time 10/2016. Sentencing will be in the near future as to exactly what time he will get (anywhere between 0 to 5 years). My question is.. can we use 212h waiver to show hardship financially if he is removed? Also his country only gives US citizens that are not originally from his country 3 month visas ( where i cannot even work as i do full time here in the usa) and limited extensions- which will be a problem for me and my boys to move to…also when he originally can here on conditional residence and having them removed would it be considered an adjustment of status that we can later use to as a waiver of inadmissibility?? as seen in Koljenovic and EW Rodriguez case? Your advice would be greatly appreciated

    1. Hi,

      That is really complex. Need to review the whole thing. I suggest that you call our office at 202-644-8600 to schedule a consultation with me or one of the other attorneys.
      Thank you,
      Ava Benach

  14. Hello Ava
    I’m 2010 I was put on 2 years probation for felony theft by taking, I finished my probation and was taken off in 2012. I flew out of the country back home(jamaica) in 2014 and on my way back at the airport cbp stopped me and schedule me for deferred inspection they wanted a copy of my criminal record. I went and they rescheduled it because I didn’t have what they needed. I was so worried and scared I just took a one way ticket back home and have been here ever since. I have a 5 year old daughter and I want to be there for her. What option do I have at this point now that I have left. I was a legal permanent resident at the time. They took my green card at the airport. How do I get back to my daughter???

  15. My family immigrated to the US from Canada in 1982, when I was 11 years old. Approx. 18 years ago I took the blame for my ex husband for a manufacturing charge because he had several priors I would get less time. I was much younger and “in love”. I also expressed concern to my criminal attorney about deportation as a consequence of my guilty plea. He assured me I would be fine. In addition to that, I also have a couple other things on my criminal record. However approx. 13 years ago I checked into a one year residential rehab to address my issues. I successfully graduated and completely turned my life around. Fast forward to December 2017. My 13 year old son plays on an elite football team in Temecula California and was invited to play in an international tournament in Cancun, Mexico. I was so proud of him and proud of what a fine young man I was raising despite the years of physical and mental abuse. He starts high school next year. He has a learning disability yet determined to be successful. This is my goal in life. My son is my life. Long story short our US team won the tournament. We were flying back home and had to change flights in San Fransisco. This is where I was detained and interrogated for six hours. Before I answered any questions I asked if I needed an attorney and was told I didn’t. I am now in removal proceedings with a master hearing on July 2nd 2018 in San Francisco’s. First off I would like my case to be heard where I live as traveling to San Fransisco would be difficult. Then again maybe S.F may be a better court. Please help me, I cannot bear the thought of deportation. I live a good life I am an active member in my community and consider myself a good person with good morals who made some bad decisions many years ago. I’ve dedicated my life to raise my son, stepdaughter and my maternal granddaughter with good morals and keep them on the right path. I’ve spoken at schools and youth shelters giving my testimony to keep at risk kids out of trouble. I’ve spoken at events and I’ve volunteered for several things. Now I’m in removal proceedings. I’m terrified. Everything I have worked so hard for could be taken away including being separated from my entire family. Please help me! I don’t know anyone in Canada. I have proof to show how my life has drastically changed from what it was 18 years ago. I left my son’s father when he was only 1, because of the severe physical abuse. Had I known that this would happen 18 years later I would have never taken the rap for him. This is an aggravated felony that I honestly just took the blame for out of young love. I was about 28 years old, I am 46 now. There must be something I can do. I can’t uproot my son and I can’t leave him behind. My whole family is here. Any advice is appreciated.

    1. We would be happy to discuss this with you in a consultation meeting. Please call our office to schedule a time to speak with an attorney.
      Ava Benach

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