Board Rejects Stand-Alone 212(h) Waiver
By Susan Schreiber
Imagine two brothers who immigrate together in 1998. In 2001, both brothers are convicted of petit larceny offenses in Florida on two separate occasions. Some years later, both brothers travel abroad and return separately. Brother A is stopped at the border and, because of his convictions, is treated as an LPR seeking admission. He is paroled back into the United States, charged with crime-based inadmissibility in removal proceedings, and is eligible to apply for a "stand-alone" 212(h) waiver, i.e. a waiver filed without a concurrent application for adjustment of status. Meanwhile, Brother B is readmitted back into the United States and his crimes do not come to the attention of DHS until later. At that point, since he is already in the United States, his removal proceedings are based on a charge of crime-based deportability. Is Brother B eligible to apply for a stand-alone 212(h) waiver too?
According to a recent BIA decision, Matter of Rivas, 26 I&N Dec. 130 (BIA 2013), the answer is no. In the Board's view, a stand-alone waiver is only available to arriving aliens seeking re-admission; all others are eligible for a 212(h) waiver only if also applying for adjustment of status. Since the LPR in Rivas was not eligible to seek adjustment, the Board concluded he did not qualify for a 212(h) waiver.
In the underlying case before the immigration judge, Rivas had successfully argued that he qualified for a "nunc pro tunc" waiver, pointing out that, due to his travel, he had been admitted when he was not in fact admissible. Relying on Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980), which held that a 212(h) waiver may be granted nunc pro tunc to a returning LPR charged with deportability, Rivas argued that because he had traveled abroad after being convicted, nunc pro tunc waiver approval would resolve the issue of his inadmissibility at the time he was erroneously readmitted. The Board rejected this argument, noting that (a) unlike with Rivas, the LPR in the Sanchez case had also applied for adjustment of status, and (b) the statutory language of 212(h) has been modified since the Sanchez decision, limiting waiver availability to situations where the noncitizen is applying or reapplying "for a visa, for admission to the U.S. or adjustment of status." INA § 212(h)(2). The Board also reasoned that allowing for stand -alone nunc pro tunc waivers would provide a mechanism to avoid the requirement that an adjustment application be filed concurrently with the waiver request.
The Rivas decision is in accord with three circuit court decisions that similarly construe 212(h) as not allowing for stand-alone waiver submissions unless the non-citizen is an arriving alien. Poveda v U.S. Att'y Gen., 692 F.3d 1168 (11th Cir. 2012); Cabral v Holder, 632 F.3d 886 (5th Cir. 2011); and Klementanovsky v Gonzales, 501 F.3d 788 (7th Cir. 2007). In effect, these court and BIA decisions allow for the disparate treatment of noncitizens based on whether they departed the United States and are put in proceedings upon return.