Board of Immigration Appeals on INA § 212(h) Waiver of Criminal Grounds

Board of Immigration Appeals on INA §212(h) Waiver of Criminal Grounds

The §212(h) waiver can forgive certain criminal inadmissibility—most crimes involving moral turpitude (CIMTs) and, in drug cases, only a single offense of simple possession of 30 grams or less of marijuana. It is not available for controlled-substance violations beyond that narrow exception.

Core eligibility pathways

• Extreme-hardship route: Show that refusal of admission would cause extreme hardship to a qualifying U.S. citizen or LPR spouse or parent. It does not apply to children, though their needs can support the qualifying relative’s hardship.
• 15-year rehabilitation route: If the offense occurred 15+ years ago, prove rehabilitation. Also, show that admission is not contrary to the national welfare, safety, or security.
• VAWA route: Special rules apply to self-petitioners based on battery or extreme cruelty.

Key BIA guidance

• Who is barred: A lawful permanent resident (LPR) who was admitted to the U.S. as an LPR and later convicted of an aggravated felony after that admission is statutorily ineligible.
• Adjustment vs. admission: The BIA has clarified that the statutory bar applies to those admitted at a port of entry as LPRs. It does not apply to those who adjusted status inside the United States. Many LPRs who adjusted may still seek §212(h), depending on circuit law and facts.
• Violent or dangerous crimes: Following Attorney General/BIA precedent, applicants with “violent or dangerous” offenses must satisfy a heightened discretionary standard. This generally requires “exceptional and extremely unusual hardship”, even if they meet basic eligibility.

Discretion remains decisive
After statutory eligibility, the Immigration Judge balances positive equities (family ties, rehabilitation, employment history, community service, length of residence, hardship evidence) against negative factors (offense seriousness/recency, repeat violations, immigration fraud). Credible testimony, consistent records, and proof of rehabilitation are critical.

Practice tips in removal proceedings

• Identify all grounds of inadmissibility early; pair §212(h) with adjustment of status when available.
• Build a documented hardship record (medical, psychological, financial, country conditions).
• Address rehabilitation concretely (programs completed, treatment, clean record, letters).
• Anticipate the heightened standard if any “violent or dangerous” element exists.

Bottom line: §212(h) is a powerful but discretionary remedy. Success turns on precise eligibility theory, circuit-aware arguments, and a compelling equities record.