Two categories of crimes provoke immigration consequences: aggravated felonies (AgFel) and crimes involving moral turpitude (CIMT).  It is important to note that these are immigration classifications and not criminal classifications.  Thus, a conviction that is not a felony under the criminal law classification, may be an “AgFel” under immigration law.  If one has a conviction which falls into either of these categories, usually s/he is subject to one of four immigration consequences:

• Permanent inadmissibility to the U.S.;
• Denial of residency;
• Revocation of residency and deportation;
• Denial of naturalization.

It is important to note, however, that aggravated felonies do not preclude adjustment of status unless the crime forms a ground of inadmissibility to the country.  An AgFel is a basis for deportation (section 237(a)(2)(A)(iii) of the INA) but not inadmissibility (section 212(a) of the INA).

THE 15 YEAR 212(h) WAIVER

The 212(h) waivers can be filed together with a residency application filed within the U.S. and together with an application for an immigrant visa at the U.S. consulate or embassy abroad.  The waiver can erase the immigration consequence of CIMTs, prostitution, crimes not prosecuted due to immunity, and one marijuana offense if for an amount of 30 grams or less.

The 15 year waiver is available for an applicant who can show that the conviction occurred more than fifteen years before the application for residency, that the applicant would not be a danger to the community and that the applicant has been rehabilitated.

THE EXTREME HARDSHIP 212(h) WAIVER

This waiver is available for the immigrant who can show that a spouse, parent, son, or daughter would suffer extreme hardship for failure to grant the waiver and residency application of the immigrant.

THE BATTERED SPOUSE AND CHILD 212(h) WAIVER

This waiver is available for the applicant who can show that s/he has suffered abuse at the hands of his or her U.S. citizen or lawful permanent resident spouse.

STAND ALONE 212(h) WAIVER

A lawful permanent resident who has a CIMT conviction can file a 212(h) waiver if s/he has resided continuously in the U.S. for at least seven years and that this time period has existed prior to his/her being placed in deportation proceedings.

THE 209(c) WAIVER FOR REFUGEES and ASYLEES

Individuals who have been admitted to the U.S. as refugees or asylees can apply for adjustment of status after one year of admission.  Section 209(c) of the INA allows such persons to apply for a waiver of a conviction together with their residency application if compelling humanitarian purposes exist, or to ensure family unity, or when a granting of the waiver is in the public interest.

THE 212(c) WAIVER FOR CONVICIONS PRIOR TO APRIL 1, 1997

Three elements need be shown to be eligible for the 212(c) waiver: (1) that the conviction was a result of a plea negotiation agreement with the prosecution; (2) that the date of the conviction was prior to April 1, 1997, the date that the law which created much of the immigration consequence of criminal activity, and (3) good moral character.

NATURALIZATION AS A DEFENSE

If one is in deportation proceedings and except for the conviction, would be eligible for naturalization, a motion to terminate deportation proceedings can be filed with an immigration judge where (1) USCIS confirms eligibility to naturalize; and (2) the matter involves exceptionally appealing or humanitarian factors.  This defense is codified at 8 CFR §1239.2(f).