Temporary Protected Status, 8 U.S.C. § 1254a

An eligible deportable alien may be granted temporary protected status in the United States if the alien's country of nationality has been designated by the Attorney General as a place where extraordinary and temporary conditions, such as armed conflict and natural disasters, exist. An alien convicted of any felony in the United States would be ineligible for this relief.

BIA: Procedural Reform to Improve case management.; Final Rule (8-26-02)

The new regulations go into effect on September 25, 2002. These regulations reduce the size of the Board to 11 members, mandating review by single Board members instead of panels of three; impose very tight briefing schedules (detained persons must submit their appeal briefs within 21 days, simultaneously with the government’s brief and without the chance to see the government’s arguments), and severely circumscribe the discretion of BIA Members to review the facts of the case before them.

From 1939 Appendix I -- Relief From Deportation, Department of Justice > USAM > Title 9 > Criminal Resource Manual, October 1997, Criminal Resource Manual 1939, with edits to reflect changes in the law.

Aliens Ineligible To Receive Visas & Ineligible For Admission; Waivers Of Inadmissibility

Inadmissable

Deportable

a. Any alien convicted of, or who admits having committed, or who admits the essential elements of a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime) is inadmissible. INA § 212(a)(2)(A)(i).

a. Any alien who (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed. (This can include a Class A misdemeanor drug/narcotics conviction). INA §237(a)(2)(A)(i).

Exception: The crime was committed when the alien was under 18, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than five years before the date of application for admission. INA § 212(a)(2)(A)(ii)(I).

Note: The exceptions under this ground are different for arriving aliens and deportable aliens.

Exception: The maximum penalty possible for the crime did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months. INA § 212(a)(2)(A)(i)(II).

b. Multiple CIMTs. Any alien who at any time after admission is convicted of 2 or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable. INA § 237(a)(2)(A)(ii).

b. Multiple Criminal Convictions. Any alien convicted of 2 or more offenses, regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement actually imposed were 5 years or more is inadmissible. INA § 212(a)(2)(B).

Note: For arriving aliens, the crimes do not need to be CIMTs and there is no exception for a single scheme.

Criminal And Related Grounds.-- (A) Conviction Of Certain Crimes.-- (i) In General.-- Except as provided in a clause (ii), any alien convicted of, or who admits having committed, or who admits acts which constitute the essential elements of-- (I) a crime involving moral turpitude (other than a purely political offense), or (II) a violation of (or a conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible. (ii) Exception.-- clause (i)(I) shall not apply to an alien who committed only one crime if-- (I) the crime was committed when the alien was under 18 years of age and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for visas or other documentation and the date of application for admission to the United States, or (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). (B) Multiple Criminal Convictions.-- Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement actually imposed were 5 years or more is inadmissible.

(C) 2a/ Controlled Substance Traffickers- Any alien who the consular officer or the Attorney General knows or has reason to believe-- (i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or (ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible.

Statutes:

INA §§ 212, 213A 8 USCS § 1182, 1183a

Regulations: 8 C.F.R. § 212 22 C.F.R. §§ 40.1-40.301 INS Operations Instructions, FAM, etc. OI § 212, 9 FAM §§ 40.31-40.35; 40.61, 40.62

  • I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal;

  • I-601, Application for Waiver of Ground of Excludability;

Alien is not deemed to have been "convicted" of crime for purposes of former 8 USCS § 1182(a)(9) until his conviction has attained substantial degree of finality, and such finality does not occur unless and until direct appellate review of conviction has been exhausted or waived. Marino v Immigration & Naturalization Service, United States Dep't of Justice (1976, CA2) 537 F2d 686.

Although a nonfinal conviction for which procedures for a direct appeal have not been exhausted or waived does not constitute a "conviction" within meaning of [INA § 212(a)(9) former 8 USCS § 1182(a)(9)] and may not be used to support a deportation order, it was harmless error for Immigration Judge to have considered alien's conviction for purposes of denying discretionary relief of voluntary departure while an appeal was pending of alien's convictions. Kabongo v Immigration & Naturalization Service (1988, CA6) 837 F2d 753, cert den (1988) 488 US 982, 102 L Ed 2d 564, 109 S Ct 533.

Waiver Of Ineligibility Aliens who are ineligible for a visa may be eligible for a waiver of ineligibility under one of the following provisions of the Act. Section 212(g) of the Immigration and Nationality Act, provider that: The Attorney General may waive the application of-- (1) subsection (a)(1)(A)(i) (health/vaccination requirements) in the case of any alien who-- (A) is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, or a United States citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa, or (B) has a son or daughter who is a United States citizen, or of an alien lawfully admitted for permanent residence, or an alien who has been issued an immigrant visa, or (2) subsection (a)(1)(A)(ii) in the case of any alien, in accordance with such terms, conditions, and controls, if any, including the giving of bond, as the Attorney General, in his discretion after consultation with the Secretary of Health and Human Services, may by regulation prescribe. Section 212(h) (crime waiver) provides that: The Attorney General may, in his discretion, waive the application of subparagraphs(A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraphs (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if-- (1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that-- (i) the alien is excludable only under subparagraph (D)(i) or (D)(ii) of such section or the activities for which the alien is excludable occurred more than 15 years before the date of the alien's application for a visa, entry, or adjustment of status, (ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and (iii) the alien has been rehabilitated; or (B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's exclusion would result in extreme hardship to the United States citizen or lawful resident spouse, parent, son, or daughter of such alien; and (2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status. No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture.

Section 212(h) of the Act, 8 U.S.C. § 1182(h) (1994), as amended by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, § 348(a), 110 Stat. 3009-546, 3009-639 (“IIRIRA”), limits statutory eligibility to apply for a waiver in certain cases, providing in pertinent part as follows:

"No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States."

See, In re Michel, 1998 BIA LEXIS 1, Interim Dec. No. 3335 (an alien not previously admitted to the United States as an alien lawfully admitted for permanent residence is statutorily eligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, despite his conviction for an aggravated felony. Conviction for an aggravated felony is not a ground of inadmissibility. An alien who is inadmissible under this section may, if statutorily eligible, seek a waiver of inadmissibility under section 212(h) of the Act.)

Misrepresentation: Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible. (i) Section 212(i) of the the Immigration and Nationality Act, provides that: The Attorney General may, in his discretion, waive application of clause (i) (fraud) of subsection (a)(6)(C)-- in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien;

Note that parents are no longer eligible for this waiver. No court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver.

Extreme hardship is not a definable term of fixed and inflexible meaning, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.

The factors to be used in determining whether an alien has established extreme hardship pursuant to section 212(i) of the Act include, but are not limited to, the following: the presence of lawful permanent resident or United States citizen family ties to this country; the qualifying relative's family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate. Section 212(d)(11) of the Immigration and Nationality Act, provides that: The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) of subsection(a)(6)(E) in the case of any alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntary and not under an order or deportation, and who is otherwise admissible to the United States as a returning resident under section 211(b) and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 203(a) (other than paragraph (4) thereof) if the alien has encouraged, induced, assisted, abetted or aided only the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law. Section 212(d)(3) of the Immigration an Nationality Act, provides that: Except as provided in this subsection, an alien (A) who is applying for a nonimmigrant visa and is know or believed by the consular officer to be ineligible for such visa under one or more of the paragraphs enumerated in subsection (q) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), or(3)(E) of such subsection), after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite the Secretary of State or by the consular officer that the alien be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General... The Attorney General shall prescribe conditions including exaction of such bonds as may be necessary to control and regulate the admission and return of excludable aliens applying for temporary admission under this paragraph.