Criminal Defense of Immigrants

(D)  In Conjunction with Adjustment of Status.[500]  A waiver under INA § 212(h) is available as a stand-alone means to avoid inadmissibility.[501]  However, a stand-alone grant of § 212(h) relief does nothing to prevent the DHS from charging the same criminal conviction as a ground of deportation.[502]  For this reason, § 212(h) waiver applications are almost always made in conjunction with an application for adjustment of status,[503] which if granted prevents the DHS from using the criminal offense to bring charges of deportability because the offense can no longer be considered to have occurred “after admission.”[504]  The waiver may also be granted nunc pro tunc to waive deportation for having been inadmissible at last entry, even if no adjustment application is filed.[505]

[500] See § 24.2, supra.

[501] Matter of Millard, 11 I. & N. Dec. 175 (BIA 1975).  The courts are split on the issue of whether noncitizens in exclusion proceedings have the right to adjust status before an Immigration Judge, or must instead must apply to the District Director.   See § 24.2, supra.

[502] Cf. Matter of Balao, 20 I. & N. Dec. 440 (BIA 1992) (§ 212(h) waiver cannot be used, by itself, to waive a ground of deportation).

[503] Matter of Zoellner, 15 I. & N. Dec. 162 (BIA 1974) (noncitizen convicted of two crimes involving moral turpitude and found deportable under INA § 241(a)(4), 8 U.S.C. § 1231(a)(4) was properly advised that s/he could apply for both adjustment of status under INA § 245, 8 U.S.C. § 1255 and an application for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h)).

[504] See § 17.7, supra.

[505] Matter of Ulloa, 20 I. & N. Dec. 725 (BIA 1999); Matter of Sanchez, 17 I. & N. Dec. 218 (BIA 1980); Matter of Parodi, 17 I. & N. Dec. 608 (BIA, 1980); see Matter of Lett, 17 I. & N. Dec. 312 (BIA 1980).