Waivers for Crimes

Waiver of Criminal Offenses under §212(c)

Section 212(c) of the INA allows a judge to waive a crime committed before April 1996 but only if the Respondent’s “equities” outweigh the seriousness of the crime. This waiver will apply to any number and type of offenses, even “aggravated felonies”, so long as the total amount of time served for all crimes is not more than five (5) years.

In order for a Respondent to be eligible for this waiver, s/he must plead guilty to the offenses in the criminal court. Sometimes, even crimes committed as late as April 1, 1997 might be covered under this waiver, but that depends on the type of the offense. The judge will consider the seriousness of the offense, but a Respondent cannot be found ineligible for the waiver based on the type of the offense.

On April 24, 1996, the Congress enacted a more restrictive waiver in which the Respondent has a more difficult burden than a section 212(c) waiver. This means that if a Respondent has a conviction after April 24, 1996, then his or her deportation defense lawyer must help him/her determine his or her eligibility under section 240A, discussed below. The §212(c) waiver is available for both types of proceedings: removal and inadmissibility proceedings.

Waiver of Criminal offenses under §240A, “Cancellation of Removal”

Congress placed greater restrictions on who may be eligible for this waiver compared to the 212(c) waiver. The biggest restriction is that a respondent will not be eligible for this waiver if he or she has committed an “aggravated felony,” as discussed above. A respondent will be ineligible for a 240A waiver if s/he has committed a non-petty offense during the first 7 years of his or her legal residency in the U.S. The offense can be either a felony or a misdemeanor.

Waiver of Criminal Offenses under §212(h)

This section is applicable if the offenses were committed after April 24, 1996, and if the Respondent is charged with being “inadmissible” under section 212. It allows for the waiver of most crimes, but usually not aggravated felonies. An “aggravated felony” may be waived under this section, however, if the respondent has committed an aggravated felony but has not been yet admitted to the U.S. as a legal permanent resident. In this instance, he or she can obtain relief under this section if her or his deportation defense lawyer is able to demonstrate that he is entitled to adjustment of status.

Pardons and Expungements

A presidential or governor’s pardon may waive certain offenses, but only during removal proceedings. The offenses that can be waived by a pardon are:

• felony crimes of moral turpitude
• aggravated felonies
• multiple crimes of moral turpitude
• An expungement, however, will not help you in immigration court; if USICE knows about your offense, expunging state’s records does not in any way cover the fact that it is a conviction. Similarly, if a respondent has plead guilty to an offense and received a sentence of supervision – at least in the State of Illinois – it may also constitute a basis to deport, since the guilty verdict has already gone on record.