INA 212(c) Waiver to Avoid Deportation after a Criminal Conviction

Under former section 212(c) of the Immigration and Nationality Act (“INA”), immigrants who were found guilty of or pleaded guilty to serious crimes before 1997 may be eligible to apply for discretionary relief from inadmissibility or deportation.

To qualify, an immigrant must:

  • Be present in the U.S. lawfully;
  • Be a lawful permanent resident (green card holder) who resided in the U.S. for at least seven consecutive years; and
  • Not have been convicted of any aggravated felony or felonies for which the immigrant served aggregate prison sentences of five years or more.[1]

To help you better understand section 212 c waivers, our Los Angeles, California immigration lawyers discuss, below:

detained immigrants holding hands through bars seeking relief

1. What is a 212(c) waiver?

A 212 c waiver is discretionary relief from deportation under former section 212(c) of the Immigration and Nationality Act (“INA”).

It gives the Attorney General of the United States broad discretion to let an immigrant remain in the country even though the alien has committed a removable (deportable) offense or an “inadmissible” crime (one that bars lawful entry into the U.S.).

2. The background to this form of deportation relief

Former INA 212c was originally passed by Congress as part of the Immigration and Nationality Act of 1952. That law excluded several classes of aliens from admission into the United States, including those convicted of drug trafficking or a crime involving moral turpitude (“CIMT”).[2]

In 1988, Congress expanded the class of deportable aliens to include those with any aggravated felony conviction.[3]

However, the law also granted the Attorney General of the United States the discretion to waive the alien's inadmissibility if the alien had lived in the U.S. for seven consecutive years and left the U.S. voluntarily following a conviction.[4]

But in 1990, Congress amended § 212(c) to prohibit discretionary relief for anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years.[5] People who served less than five years for an aggravated felony were, however, still eligible for relief.

Then in 1996 Congress adopted § 440(d) of the Antiterrorism and Effective Death Penalty Act (“AEDPA”).[6] The AEDPA made an alien convicted of any aggravated felony ineligible for discretionary relief from deportation.[7]

Finally, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”).[8] This act repealed § 212(c) entirely and replaced it with “cancellation of removal.”[9]

Under cancellation of removal, relief from deportation is not available to an alien convicted of any aggravated felony regardless of the term of imprisonment imposed or served.[10]

3. Can I still get 212(c) relief?

Yes. The United States Supreme Court has held that an alien whose original conviction occurred before April 1, 1997 can still apply for INA 212(c) relief.[11]

In California, Nevada and other jurisdictions served by the federal Court of Appeals for the Ninth Circuit, the 212 c waiver process applies regardless of whether the alien pleaded guilty or was found guilty at trial.[12]

All that matters is that the conviction occurred before INA 212(c) was repealed and that the defendant has not served more than five years in prison.

But remember -- 212(c) waivers are discretionary. The immigration judge or Board of Immigration Appeals (BIA) adjudicator (as applicable) is not obligated to grant a waiver.

4. How long do I have to apply?

There is no fixed deadline for requesting a 212(c) waiver. Anyone with a conviction before April 1997 and a prior order of deportation can petition to reopen his or her case.

However, in deciding whether to grant the petition, an immigration judge or BIA adjudicator will look to see whether the alien has acted diligently. If the judge decides the alien unreasonably delayed seeking relief, it will most likely be denied.

Therefore, we recommend seeking 212 c relief as soon as possible (ideally within 90 days of a final removal order).

5. What are the eligibility requirements for a 212c waiver?

The specific eligibility requirements for a 212(c) waiver depend on the date of conviction.

In all cases, however, an alien is ineligible for a 212c waiver if:

  • The alien has departed and is currently outside the United States, or
  • The alien is unlawfully present in the U.S.

5.1. Convictions prior to April 24, 1996

To obtain 212c relief, those who pleaded guilty or were convicted of a deportable offense prior to April 24, 1996 must show that:

  • They are a lawful permanent resident (or were a lawful permanent resident prior to receiving a final order of deportation or removal).
  • They have resided in the U.S. for at least 7 years as a lawful permanent resident (green card holder) or a lawful temporary resident under the amnesty or Special Agricultural Workers program;
  • They have not served 5 total years or more for an aggravated felony conviction or convictions entered between November 29, 1990, and April 24, 1996;
  • They have not been convicted of a federal firearms offense or an offense involving destructive devices; and 
  • They have not been charged with entering the United States illegally.

5.2. Convictions between April 24, 1996 and April 1, 1997

To obtain 212c relief, those who pled guilty or were convicted of a deportable offense between April 24, 1996 and April 1, 1997 must show that:

  • They are a lawful permanent resident (green card holder); 
  • They have resided in the U.S. for at least 7 years as a lawful permanent resident or a lawful temporary resident under the amnesty or Special Agricultural Workers program; and
  • They have not been convicted of:
    • An aggravated felony
    • A crime related to firearms or destructive devices; 
    • An offense related to a controlled substance;
    • Espionage, treason, terrorism or national security grounds;
    • Two crimes involving moral turpitude for which the possible sentence was a year or more; or
    • Illegal entry into the United States.
close up on judge's gavel being banged by judge against table

6. How does the immigration judge decide whether to grant my application?

212c waivers are not automatic. Immigration judges have considerable discretion whether to grant such relief.

In deciding whether to grant one, the judge will balance “positive” and “negative” factors.

Positive factors include (but are not limited to):

  • Family ties to U.S. citizens and green card holders,
  • Ownership of U.S. property,
  • Business ties,
  • Length of residence in the U.S., 
  • The hardship that would result to family members who are citizens or green card holders if the alien was deported,
  • Community service,
  • Evidence of rehabilitation, and 
  • Evidence of good moral character.

Negative factors can include (but are not limited to):

  • The nature and severity of the alien's criminal acts,
  • How recent the criminal acts are, and
  • Evidence of bad moral character.

7. What happens if my 212 c waiver is granted?

If an alien's 212 c waiver is granted, the alien will be able to keep his or her green card and stay in the United States as a lawful permanent resident.

8. Can I appeal if my request is denied?

Yes. But the denial of a waiver can be reversed for clear legal or factual errors only. It can not be appealed simply because an appeals court might disagree with the IJ's or adjudicator's determination.

9. How do I apply for a 212c waiver?

To apply for a 212c waiver, an alien should file Form I-191, Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA).[13]

The form should be filed with either the Immigration Court or the Board of Immigration Appeals (BIA), whichever last had the alien's case.

10. How much does it cost to apply?

The current filing fee for a 212c waiver is $930.[14]

If you hire an attorney to help with your application (recommended) any lawyer fees will be additional.

Have you been ordered deported? Call us for help…

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If you or someone you know has been ordered removed from the United States, we invite you to contact us for a free consultation.

There are numerous ways to fight deportation, from post-conviction relief to waivers and cancellation of removal.

Call us at (855) 396-0370 to discuss your case with one of our Los Angeles, California immigration and criminal attorneys. Or complete the form on this page and a lawyer will contact you at a convenient time.

Legal references:

  1. See 8 USC. § 1182(c); 8 USC § 1229b (1996)
  2. 66 Stat. 182–87; INS v. St. Cyr, 533 U.S. 289 (2001).
  3. See Anti–Drug Abuse Act of 1988; 102 Stat. 4469–4470; 8 U.S.C. § 1227(a)(2)(A)(iii).
  4. 8 U.S.C. § 1182(c) (1988) (repealed).
  5. § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182(c)).
  6. Pub.L. No. 104–132, 110 Stat. 1214 (codified in relevant part at 8 U.S.C. § 1182 (1996)).
  7. See 110 Stat. 1277 (amending 8 U.S.C. § 1182(c)).
  8. Pub.L. No. 104–208, 110 Stat. 3009–546.
  9. See § 304(b), 110 Stat. 3009–597.
  10. See 8 U.S.C. § 1229b (1996).
  11. Vartelas v. Holder, 132 S.Ct. 1479 (2012).
  12. Cardenas-Delgado v. Holder, 720 F. 3d 1111 (9th Cir. 2013).
  13. Note: This form was previously titled, "Application for Advance Permission to Return to Unrelinquished Domicile".
  14. Current as of July 2017. For the most current fee information, see United States Citizenship and Immigration Services (USCIS) filing fees.

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