Criminal Defense of Immigrants

(I)  Can a § 212(c) Waiver be Combined with Another Form of Relief?  Noncitizens in removal proceedings are allowed to make multiple applications for relief, in combination, in order to avoid removal.  A common example is an application for adjustment of status in combination with an application for a waiver of inadmissibility under INA § 212(h), in order to avoid deportation.[441]  The same may be done with an application for a § 212(c) waiver.[442]

                However, a noncitizen cannot apply for § 212(c) relief in conjunction with an application for cancellation of removal if any of the convictions sought to be waived is an aggravated felony.[443]  Under Gabryelski,[444] combination grants of relief are not simultaneous.  They only happen to be made during the same proceeding.  Because an applicant is ineligible for cancellation if s/he has already received § 212(c) relief, the cancellation application must be considered first.  However, the cancellation application is barred if the applicant has an aggravated felony. [445]  See also § 24.3, supra.

[441] See Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993).

[442] See Matter of Azurin, 23 I. & N. Dec. 695 (BIA Mar. 9, 2005) (application for adjustment of status combined with § 212(c) waiver allowed to waive non-analogous aggravated felony offense to avoid aggravated felony ground of deportation).

[443] Garcia-Jimenez v. Gonzalez, 472 F.3d 679 (9th Cir. Jan. 2007) (one cannot obtain cancellation of removal for permanent residents if relief is granted under former INA § 212(c) at any time, even during the same proceedings) [Note: it appears from the facts in this case that the Ninth Circuit failed to follow its own precedent decision, Sinotes-Cruz v. Gonzalez, 468 F.3d 1190 (9th Cir. Nov. 2006) (permanent stop-time rule for cancellation of removal cannot be applied retroactively to convictions occurring prior to the effective date of IIRAIRA, therefore allowing a person to apply for cancellation despite a conviction of a crime of moral turpitude that occurred during the first seven years of physical presence)]; Munoz-Yepez v. Gonzales, 465 F.3d 347 (8th Cir. Aug. 30, 2006) (noncitizen convicted of 1994 aggravated felony and 2004 domestic violence offense cannot apply for relief under both former INA § 212(c) and cancellation of removal under INA § 240A).

[444] Matter of Gabryelsky, 20 I. & N. Dec. 750, 755 n.3 (BIA 1993) (a noncitizen “may not ‘bootstrap’ eligibility from one waiver to the other since he should not be eligible for either form of relief without the other waiver having first been granted.”).

[445] See Comas v. McDonough, No. Civ.A. 04-10691-PBS (D. Mass. Mar. 23, 2005) (unpublished).