Taking The Discretion Out Of Discretion: INS Issues Interim Final Rule On 212(h) Waivers Of Inadmissibility
Section 212(h) of the Immigration and Nationality Act gives the Attorney General discretion to waive certain grounds of inadmissibility based on criminal convictions. The Attorney General may waive inadmissibility under INA § 212(a)(2) if an immigrant can establish that the denial of admission would result in extreme hardship for the immigrant’s US citizen or lawful permanent resident spouse, parent, son or daughter.
In July 2002, the INS issued a proposed rule amending the standard for 212(h) waivers of inadmissibility in the context of adjustment of status for certain aliens from Vietnam, Cambodia and Laos. See 67 Fed. Reg. 45402 (July 2, 2002).1 The proposed rule added 8 C.F.R. 212.7(d) to the regulations, applying a heightened standard to those applicants with convictions for "violent or dangerous crimes." Although the addition to the 212(h) waiver regulations was designed to be generally applicable, its inclusion in the regulations on the adjustment of status for aliens from Vietnam, Cambodia and Laos caused the addition to get overshadowed and overlooked.
In response to a comment on the proposed rule, the INS determined that it was appropriate to issue a separate regulation regarding waivers under 212(h), as the regulations apply to all waiver applicants, not only those from the above-referenced countries.
On December 26, 2002, the INS issued a separate interim final rule affecting 212(h) waivers. The interim final rule allows for a 30-day comment period. Although not explicitly stated, the INS may have realized that the prior proposed rule on 212(h) waivers was somewhat hidden among the other regulations and thus determined that a separate interim final rule should be published prior to the publication of the final rule.
The interim final rule adds 8 C.F.R. § 212.7(d) to INS regulations. The new subsection provides:
(d) Criminal grounds of inadmissibility involving violent or dangerous crimes. The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act…to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.
The rule in effect creates a new standard for 212(h) waivers for individuals with convictions for "violent or dangerous" crimes. In such circumstances, an applicant for adjustment of status must now show one of the following (in addition to the threshold requirements of INA § 212(h)):
1) Extraordinary circumstances (involving national security or foreign policy); or
2) Exceptional and extremely unusual hardship.
The new 212(h) regulation is a logical extension of the Attorney General’s recent tendency toward imposing limitations on discretionary relief. In Matter of Jean, 23 I. & N. Dec. 373 (A.G. 2002), the Attorney General overruled a decision of the Board of Immigration Appeals and imposed a similar standard on applications for adjustment of status filed by refugees with criminal convictions. The Attorney General stated:
It would not be a prudent exercise of the discretion afforded to me by [INA § 209(c)] to grant favorable adjustments of status to violent or dangerous individuals except in extraordinary circumstances or cases in which an alien clearly demonstrates the denial of status adjustment would result in exceptional and extremely unusual hardship.2
The new 212(h) regulations and Matter of Jean essentially change the statute from a positive to a negative, from stating that the Attorney General "may" grant the waiver to stating that the Attorney General "may not" grant the waiver "unless" the heightened standard is met.
It is interesting to note that the statutory standard for granting waivers for criminal convictions is considerably more forgiving for refugees than for applicants for adjustment of status seeking 212(h) waivers. Attorney General may waive most grounds of inadmissibility under INA § 212(a) for refugees "for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest." See INA § 209(c). All individuals seeking a waiver under 212(h) must show at least "extreme hardship" to a qualifying relative. The new 212(h) regulation and Matter of Jean apply the same heightened standard to individuals with convictions for "violent or dangerous" crimes, refugee or not. The INS explained that the new regulation seeks to "harmonize the exercise of discretion to grant criminal waivers among applicants for adjustment of status…" See 67 Fed. Reg. 78667.
As the Attorney General has twice used the term "violent or dangerous" crime (or individual) in recent publications, the question arises: What is a "violent or dangerous" crime? The Board of Immigration Appeals and federal courts have often grappled with the definition of a "crime of violence." 18 U.S.C. § 16(b) provides guidance, but the term has been the subject of extensive litigation and debate.3 The inclusion of "dangerous" crimes in the new 212(h) regulation clearly broadens the category of offenses. However, it is not yet clear which crimes will be considered "dangerous" for purposes of the new regulation or for applications for adjustment of status under INA § 209 (relating to refugees). It is clear that the broad category of offenses will include both serious and minor crimes. Many waivers will be denied for failure to meet the statutory or regulatory standards and few waivers will be decided based on the Attorney General’s exercise of discretion.
1 The final rule was issued on December 26, 2002 and will go into effect on January 27, 2003. See 67 Fed. Reg. 78667 (December 26, 2002). The regulations implement Section 586 of the Foreign Operations Appropriations Act of 2001 (Pub. L. No. 106-429) which allows for the adjustment of status of citizens or natives of Vietnam, Laos or Cambodia, present in the United States on October 1, 1997 who were paroled into the United States 1) from Vietnam under the auspices of the Orderly Departure Program; 2) from a refugee camp in East Asia; or 3) from a displaced persons camp administered by the United Nations High Commissioner for Refugees in Thailand. Such individuals will be permitted to apply for adjustment of status from January 27, 2003 through January 25, 2006.
2 In the context of the discretionary grant of asylum, the Attorney General indicated that he is "disinclined" to exercise discretion to grant asylum to "dangerous or violent felons." See Matter of Jean, 23 I. & N. Dec. at 385. However, there is no indication in the decision or in the new regulation that the heightened standard applies only to those convicted of a felony.
3 For a comprehensive discussion of the history of "crimes of violence," see Karen Crawford and Thomas Hutchins, Ignoring Congress: The BIA and Crimes of Violence in Puente and Magallanes, 6 Bender’s Imm. Bull. 67 (Jan. 15, 2001).