Written by Mary Kenney
For more than five years, the Department of Justice
(DOJ) has defended a policy that deprives long-term lawful permanent residents
(LPRs) of the opportunity to apply for a waiver that would allow them to remain
in the United States. The waiver—known as the 212(h) waiver (referring to
section 212(h) of the immigration statute)—permits permanent residents who were
convicted of certain crimes to avoid deportation if they can show that their
U.S. citizen or lawful resident family member would suffer extreme hardship if
they were deported. The policy at issue—announced through a Board of Immigration
Appeals (BIA) decision—significantly narrows the group of LPRs who are eligible
for this waiver. Many of those LPRs who have been excluded from applying for
the waiver have gone to court. To date, the count is LPRs – 6, DOJ – 0, the
most recent decision coming just last month. Yet, despite an obviously flawed
BIA decision, DOJ continues to defend it, at great expense to LPRs and their
families.
The 212(h) waiver is particularly important because
it is one of the few remaining situations in which an immigration judge can
consider all aspects of the noncitizen’s life, such as family ties, length of
time in the United States, and rehabilitation, as weighed against the person’s
wrongdoing. In contrast, as a result of immigration laws enacted in the mid-1990s,
immigration judges largely have been stripped of their ability to act like
judges and make individualized determinations about whether deportation is
appropriate. In far too many cases, a crime, even a nonviolent one, can lead to
automatic deportation and banishment from the United States. Given the limited
avenues immigration judges have to ensure that the punishment fits the crime,
it is difficult to comprehend why DOJ insists on defending a rule that not only
limits immigration judge’s discretion, but also, according to 6 courts, is
unlawful.
The technical legal issue in these cases focuses on
a provision in the waiver that excludes individuals who were admitted to the
United States as LPRs and who subsequently committed an aggravated felony. The
BIA has interpreted this bar to include all LPRs who have committed aggravated
felonies, regardless of whether they were LPRs when they entered the United
States or became permanent residents only after they had entered. The courts
all agree that the bar on the 212(h) waiver only applies to the first group of
LPRs (i.e., those who initially entered as LPRs). They have unanimously
rejected the BIA’s broad reading of the bar, explaining that it imposes a limit
on eligibility for a 212(h) waiver beyond that which Congress included in the
statute.
Unfortunately, this protracted fight over who is
eligible for a 212(h) waiver is not simply a battle over words. It can have
real-life consequences for long term permanent residents. For example, Robert
Michel Stanovsek first came to the United States on a visitor visa in 1990.
Later that year, while living here, he became a lawful permanent resident
through his marriage to a United States citizen. They have been married for
over 23 years and have six children, all U.S. citizens. He now is facing
deportation from the United States based on a single crime, a theft offense.
His only chance to remain in the United States is if an immigration judge
grants him a 212(h) waiver. Under the BIA’s restrictive ruling, he is not eligible
to apply for the waiver. Mr. Stanovsek’s case currently is on appeal before a
federal court.
Over the past five years since the the first federal
court struck down the BIA decision, the BIA’s policy has been binding in all
immigration courts in jurisdictions where the federal court has not yet ruled
on the issue. Mr. Stanovsek is fortunate that he was able to retain a lawyer
and has brought his case to court. Countless others, however, have not been
able to do so, and as a result, have been deprived of the opportunity to apply
for a 212(h) waiver, both because of where they live and because DOJ has
refused to accept that the federal courts are correct and the BIA wrong. Now
that a clear majority of the courts of appeals has spoken, DOJ should withdraw
its continued opposition to the court’s reading of § 212(h) and right this
wrong.
See the entire article here.
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