How to file a 212H waiver in immigration court

Alright, this is a short and dirty posting today. I was doing research online, and noticed that there is a dearth of "how to" guides on 212(h) waivers. The 212(h) waiver is valid for LPR's who originally adjusted their status while in the US. Although 212(h) was designed for first time applicants, it is most often used (in the immigration court context) by LPR's who are returning from overseas, are stopped at the border by CBP (Custom and Border Protection).

Section 212(h) of the Immigration and Nationality Act provides that the Attorney General may, in his/her discretion, waive the application of subparagraph 212(a)(2)(A)(I) (crimes involving moral turpitude), 212(a)(2)(B) (multiple criminal convictions), 212(a)(2)(D) (prostitution and commercial vice), 212(a)(2)(E) (certain aliens who have asserted immunity from prosecution), and 212(a)(2)(A)(i)(II) (an offense of simple possession of 30 grams or less of marijuana). See, EOIR Judge's Benchbook regarding 212(h) relief. Additionally, In Matter of J-H-J-, 26 I.&N. Dec. 563 (BIA 2015), the waiver was extended to individuals who are convicted of aggravated felonies.

There are two types of 212(h) defenses:

1. If your client has been in the US for 15 years or more, BEFORE the filing of the 212(h). Note, this is NOT before the commission of the crime (or conviction thereof), rather before the 212(h) is filed.

2. If your client has NOT been in the US for 15 years, then he/she can file for a 212(h) on a showing of extreme hardship to a US Citizen of LPR family member. This is the same standard as the I-601.

To request type (2) relief above in immigration court, the attorney must file an I-601 with USCIS including paying the appropriate filing fees. Proof of payment of the fees, along with proof of mailing, is sufficient to initiate a 212(h) defense in the Court. You need to submit the filed I-601 and proof of payment (copy of the check and proof of mailing is usually sufficient), to request this relief.

No filing with USCIS is required when requesting 212(h) relief of type (1) above, as no hardship must be shown. This is merely an alternative to LPR cancellation.

Given that the LPR is likely detained (arriving aliens cannot get bond), make sure you have a 212(h)/601 application ready at the first hearing. This will allow you to request the earliest possible trial (merit's hearing) date.

Hanover Law, PC
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2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
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A Curious Trial: U Visas, Rape, M-A-M hearing, and CAT relief

I was recently faced with a very difficult trial. A client of mine was suffering from torture and rape in prison, and the trial to have him released had been 10 months in the making. Additionally, I was barred from seeking Federal relief because the agency that held him was neither the state, nor even a prison -- rather it was a Federal Agency: ICE. Getting reports from that agency on anything is like pulling teeth.

After a grueling 5 hour trial, I managed to secure CAT relief for my client. In a different discussion forum, I mentioned different avenues for presenting the prison rape problem. Investigations were still underway when we went to trial on the 10th of December, 2012.

I decided to write up a motion with attendant supporting documentation showing the abuse, the investigation, and various responses from state and federal agencies. Instead of serving it in open court, I discussed it with the DHS attorney before court. To say the DHS attorney was surprised would be an understatement! She scurried off upstairs, as DHS did not know what was going on with the client and ICE had put nothing into the file. Nice.

When the judge came in, I explained the situation to him. He then took the motion packet and a stack of law books and reviewed it all in his office.

The tactic I decided on was not presentation on the record, per se – rather a soft demonstration prior to commencing operations. Gave everyone time to review and help come up with a solution. Very collaborative. I got one hell of a payback for that at the beginning of the trial, but at least at this point, my “sandbagging” the court and DHS was received with only a modest amount of grumbling. I will tell you, though, that I came prepared. The motion was properly formatted, and even hole-punched at the top! (I forget that all the time on emergency motions). I digress.

The awesome aspect of this was the ability to discuss with the judge and DHS counsel the prison conditions and rape (including medical problems, and document theft/protection money payments being required from my client) prior to any hearing on my CAT claim.

The judge proceeded with the trial, but it was obvious that he wanted to find some relief for my client just to get the guy out of prison (he had been detained by ICE for 10 months).

DHS had it’s own unexpected whammy. After the trial started, we immediately went into a M-A-M hearing – which I was entirely unprepared for. I was not even clear if I should be arguing my client was competent to stand trial (he had a couple of “not-guilty” findings due to insanity defense) or if I should try to ditch the case on grounds he could never comprehend the criminal nature of his conduct. That was a tad awkward. As a foot note – for those of you who have not done M-A-M hearings, these are generally fairly straight forward question/answer sessions based on medical reports and other corroborating evidence that speaks to your clients mental capacity. As a rule of thumb, a client represented by an attorney, and who can answer questions about the nature of the NTA, allegations, and why he/she is present at the trial, will be found competent to move forward. If the client is not found competent, the court has leave to suspend the hearing until competency can be established, appoint a guardian, or even remove the case and terminate proceedings. In the instant case, it was strange because I did not know how to argue it – especially given the prison rape, the psych background, and the need to get my client out ASAP. I hate not being prepared. For those who take the class on 18 Dec – you will have that hammered into you quite well.

Regardless, the judge found the client competent to stand trial and we had very interesting trial for many hours on homosexuals and transgenders in Venezuela.

It was a great hearing – but the take away is the tactic for handling prison situations prior to an IC wholly unrelated to the matter.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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