AILA Public Statements, Memo & Regulatory Comments

AILF and AILA's Comments to Interim Rule on 212(h) Waivers

1/27/03 AILA Doc. No. 03012742.

 American Immigration Law Foundation

SENT VIA E-MAIL TO insregs@usdoj.gov

January 27, 2003


Director, Regulations and Forms Services Division
Immigration and Naturalization Service
425 I Street, N.W., Room 4034
Washington DC 20536

RE: Comments to Interim Rule on Waiver of Criminal Grounds of Inadmissibility for Immigrants
INS No. 2249-02; AG Order No. 2641-2002; RIN 1115-AG90
67 Fed. Reg. 78675 (December 26, 2002)

The American Immigration Law Foundation ("AILF") and the American Immigration Lawyers Association ("AILA") submit the following comments on the interim rule regarding waivers under § 212(h) of the Immigration and Nationality Act ("INA").

I. Background

A waiver of certain criminal grounds of inadmissibility for the immediate family members of U.S. citizens ("USCs") or lawful permanent residents ("LPRs") has existed since the 1950s. See Matter of Sanchez, 17 I & N Dec. 218 (BIA 1980) (Discussing INA § 212(h) and its predecessors, § 5 of the September 11, 1957 Act and the prior § 212(g)). The statutory standard for a waiver under INA § 212(h)(1)(B) always has been whether the denial of an immigrant visa or adjustment of status to the applicant would cause "extreme hardship" to the applicant's USC and/or LPR family members. See Matter of B-, 11 I & N Dec. 560 (Assoc. Comm. 1966); Matter of H-, 14 I & N Dec. 185 (Reg. Comm. 1972); Matter of Alarcon, 20 I & N Dec. 557 (BIA 1992). Even when the Board of Immigration Appeals ("BIA" or "Board") held that it can consider factors other than extreme hardship to the USC or LPR family members in determining whether to exercise its discretion under INA § 212(h), it chose to do so in an individualized balancing test of positive equities versus adverse factors present in each case. Matter of Mendez-Moralez, 21 I & N Dec. 296 (BIA 1996).

In 1991, Congress expanded the 212(h) waiver to immigrants without qualifying USC or LPR relatives.1 INA § 212(h)(1)(A) does not require an applicant to show extreme hardship. Instead, it requires the applicant to show that the crime at issue had been committed at least fifteen years ago, that s/he has been rehabilitated, and that his or her admission into the U.S. would not be contrary to our national welfare, safety or security.

In contrast to the plain language of INA § 212(h) and long-standing case law interpreting INA § 212(h), the interim rule imposes a de facto ban on the granting of 212(h) waivers. In cases involving "violent or dangerous crimes," the applicant must now demonstrate "exceptional and extremely unusual hardship." 8 C.F.R. § 212.7(d) (effective Jan. 27, 2003). Even where the applicant has met such a high standard, the waiver may still be denied depending on the gravity of the underlying criminal offense. Id. The supplementary information to the interim rule goes even further and states that "in general, individuals convicted of aggravated felony would not warrant the Attorney General's discretion." 67 Fed. Reg. at 78677.

Clearly, the interim rule is flawed for several reasons. One, it exceeds statutory authority. The interim rule ignores the eligibility criteria mandated by INA § 212(h)(1)(A) and § 212(h)(1)(B) and attempts to override the statute by imposing its own standard for a 212(h) waiver. Two, the interim rule arbitrarily limits the proper exercise of discretion by focusing solely on the nature of the crime involved, rather than giving full consideration to all positive and negative factors in each individual case. Finally, the interim rule does not clearly indicate that it should not be applied retroactively.

II. The Interim Rule Exceeds Statutory Authority and Contravenes Legislative Intent.

A. INA § 212(h)(1)(A)

INA § 212(h)(1)(A) allows for a waiver of certain criminal grounds of inadmissibility if:

  • The applicant is inadmissible only under INA § 212(a)(2)(D)(i) or (D)(ii); or
  • The crime(s) for which the applicant is inadmissible occurred more than 15 years before the date of his or her application for a visa, admission, or adjustment of status;
  • The applicant's admission to the U.S. would not be contrary to the national welfare, safety, or security of the United States; and
  • The applicant has been rehabilitated.

Unlike an applicant for a waiver under INA § 212(h)(1)(B), an applicant for a waiver under INA § 212(h)(1)(A) need not show that the denial of the waiver would result in extreme hardship to his or her USC or LPR relatives. INA § 212(h)(1)(A); See also Matter of Mendez-Moralez, 21 I & N Dec. 296, 301 (BIA 1996).

Despite these clear statutory requirements for a waiver under INA § 212(h)(1)(A), the interim rule would prohibit the granting of a waiver under this subsection if the case involved "violent or dangerous crimes," unless the applicant could show that the denial of the waiver would result in "exceptional and extremely unusual hardship." 8 C.F.R. § 212.7(d) (effective January 27, 2003).

The interim rule overrides the statute in two ways. One, it negates INA 212(h)(1)(A). The interim rule focuses solely on the nature of the crime. It does not allow the adjudicator to take into account statutory factors such as the length of time passed since the crime occurred, or rehabilitation, in deciding whether to require the applicant to show exceptional and extremely unusual hardship. The interim rule thereby negates the very factors that the Congress considered to be crucial in determining whether to grant waivers under INA § 212(h)(1)(A). A regulation governing the exercise of discretion in granting a waiver cannot trump the statute governing such a waiver.

Two, requiring demonstration of exceptional and extremely unusual hardship in order to receive a waiver under INA § 212(h)(1)(A) contravenes the legislative intent behind this statute. Unlike INA § 212(h)(1)(B), INA § 212(h)(1)(A) does not require the applicant to show even extreme hardship. Congress did not impose a hardship requirement when it added § 212(h)(1)(A) to the INA in 1990. Nor did it add such a requirement when it amended INA § 212(h) in the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 ("MTINA") or again in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). By requiring applicants for a 212(h)(1)(A) waiver to show exceptional and extremely unusual hardship, the Attorney General is imposing a requirement by regulation that Congress chose not to include in the statute.

B. INA § 212(h)(1)(B)

INA § 212(h)(1)(B) waives certain criminal grounds of inadmissibility for a spouse, parent, son or daughter of a USC or an LPR if denial of the waiver would cause "extreme hardship" to the qualifying USC or LPR family member(s). Extreme hardship has been the statutory standard for such waivers since the 1950s. See Matter of B-, 11 I & N Dec. 560 (Assoc. Comm. 1966); Matter of H-, 14 I & N Dec. 185 (Reg. Comm. 1972); Matter of Alarcon, 20 I & N Dec. 557 (BIA 1992). One of these precedents observed that:

[A]lthough a successful applicant under section 212(h) of the Act naturally gains a benefit, the basic purpose in granting a waiver is to render relief to a citizen or lawful permanent alien who is in extreme need thereof, unless to do so would be contrary to the good of the public in general.

Matter of B-, 11 I & N Dec. 560, 563 (Assoc. Comm. 1966). (emphasis added).

Despite the long-standing statutory standard requiring extreme hardship for a waiver under INA § 212(h)(1)(B), the interim rule prohibits the granting of a waiver under this subsection if the case involves "violent or dangerous crimes," unless the applicant can show that the denial of the waiver would result in "exceptional and extremely unusual hardship." 8 C.F.R. §212.7(d) (effective January 27, 2003).

The interim rule exceeds statutory authority by requiring the applicant to meet a higher standard of hardship than that required by the statute. INA § 212(h)(1)(B) only requires a showing of extreme hardship, regardless of the nature of the underlying crime.

As discussed above, extreme hardship has been the statutory standard for a waiver under INA § 212(h)(1)(B) since the 1950s. See Matter of B-, 11 I & N Dec. 560 (Assoc. Comm. 1966); Matter of H-, 14 I & N Dec. 185 (Reg. Comm. 1972); Matter of Alarcon, 20 I & N Dec. 557 (BIA 1992). Since then, Congress has had numerous occasions to heighten the hardship requirement for 212(h)(1)(B) waivers. It repeatedly chose not to do so.

The fact that Congress did not change the hardship requirement for 212(h)(1)(B) waivers from "extreme hardship" to "exceptional and extremely unusual hardship" in IIRIRA is particularly instructive. In IIRIRA, Congress replaced suspension of deportation, which required extreme hardship, with cancellation of removal, which requires exceptional and extremely unusual hardship. Compare former INA § 244 and INA § 240A(b).

"Extreme hardship" and "exceptional and extremely unusual hardship" are terms of art with clearly different meanings in immigration law. Matter of Anderson, 16 I & N Dec. 596 (BIA 1978) (setting forth criteria for determining "extreme hardship"); Matter of Monreal, 23 I & N Dec. 56 (BIA 2001) ("the term “exceptional and extremely unusual hardship” is a more restrictive standard than the “extreme hardship” standard."). The Congress chose to heighten the level of hardship required from "extreme hardship" to "exceptional and extremely unusual hardship" in cancellation of removal, yet continued to use the "extreme hardship" standard in 212(h)(1)(B) waivers.

The Supreme Court has observed that "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that the Congress acts intentionally and purposefully in the disparate inclusion or exclusion." INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987). The interim rule exceeds statutory authority and contravenes the clear intent of Congress by requiring 212(h)(1)(B) waiver applicants to demonstrate "exceptional and extremely unusual hardship."

III. The Interim Rule Does Not Represent a Proper Exercise of Discretion, But a Nullifcation of the Statute.

The supplemental information to the interim rule asserts that the interim rule does not exceed statutory authority, because "8 CFR 212.7(d) governs only the exercise of discretion under section 212(h)(2) of the Act, after the alien has met the threshold requirement of section 212(h)(1) of the Act." 67 Fed. Reg. 78677. (emphasis in the original).

Even if the supplementary information's assertion is correct, the Attorney General's discretion under § 212(h)(2) cannot be used to nullify § 212(h)(1)(A) or § 212(h)(1)(B). The interim rule, by focusing solely on the nature of the underlying crime, de facto eliminates the 212(h)(1)(A) or 212(h)(1)(B) waiver for anyone convicted of a "violent or dangerous crime" if s/he cannot demonstrate exceptional or extremely unusual hardship.

The supplemental information cites INS v. Yang, 519 U.S. 26, 30-31 (1996), for the proposition that "[statutory] [e]ligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace." 67 Fed. Reg. at 78677. Yet the very next sentence in Yang shows that discretion cannot be used to negate the statute. The Court observes that:

It could be argued that if the Attorney General determined that if any entry fraud or misrepresentation, no matter how minor and no matter what the attendant circumstances, would cause her to withhold that waiver, she would not be exercising the conferred discretion at all, but would be making a nullity of the statute.

INS v. Yang, 519 U.S. 26, 31 (1996). (emphasis added).

The interim rule represents just such a nullification of the statute. Under the interim rule, a waiver under INA § 212(h)(1)(A) or § 212(h)(1)(B) is simply no longer available for anyone who has been convicted of a "violent or dangerous crime" but cannot demonstrate exceptional and extremely unusual hardship. Such a person would not be eligible for a 212(h) waiver regardless of whether s/he has satisfied all the statutory elements of § 212(h)(1)(A) or § 212(h)(1)(B), and regardless of whether his or her case presents any equities traditionally considered in 212(h) waivers, such as family ties in the United States, length of residence in the United States (especially if s/he began residing in the United States at a young age), service in the military, stable employment history, community service, and evidence of good moral character. See Matter of Mendez-Moralez, 21 I & N Dec. 296, 301 (BIA 1996). Such an inflexible rule is not an exercise of discretion, but a nullification of the very statute that the regulation is suppose to implement.

IV. The Interim Rule Should Clearly Indicate That It Should Not Be Applied Retroactively.

The interim rule does not indicate its temporal scope. It should be clarified to reflect that it will not apply retroactively to those whose underlying criminal conviction occurred on or before January 27, 2003, the effective date of the interim rule.

First, an agency cannot promulgate rules that apply retroactively, unless it is explicitly authorized to do so by Congress. The Supreme Court has held that "a statutory grant of legislative rulemaking will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms." Bowen v. Georgetown University Hospital, et. al., 488 U.S. 204, 208 (1988). In the case of the interim rule, neither INA § 212(h)(2) nor INA § 103 explicitly authorizes the Attorney General to promulgate a regulation that would have a retroactive effect.

Second, applying the interim rule to those whose criminal convictions arose on or before the effective date of the interim rule would have an impermissible retroactive effect. The Supreme Court has held that a law has retroactive effect if it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past." Landgraf v. USI Film Products, 511 U.S. 244, 269 (1994). In performing the Landgraf analysis in INS. v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court observed that one should make a “commonsense, functional judgment about whether the new provision attaches new legal consequences to events completed before its enactment,” 533 U.S. at 321, and whether doing so would offend “familiar considerations of fair notice, reasonable reliance, and settled expectations.” Id.

While Landgraf examined the retroactive application of a statute, the analysis also applies to the retroactive application of a regulation. See e.g. Rock of Ages Corp. v. Secretary of Labor, et. al., 170 F.3d 148, 158 (2nd Cir. 1999).

In St. Cyr, the Supreme Court held that IIRIRA's repeal of INA § 212(c) should not apply retroactively to those who had been convicted of a crime on or before IIRIRA's effective date. It noted that noncitizens facing criminal charges "are acutely aware of the immigration consequences of their convictions," and that they relied upon "settled practice, the advice of counsel and perhaps even assurances in open court" on the availability of 212(c) relief at the time of their convictions. 533 U.S. at 323. The Court held that "it would surely be contrary to 'familiar considerations of fair notice, reasonable reliance, and settled expectations' to hold that IIRIRA's subsequent restrictions deprive them of any possibility of such relief." Id. at 323-24.

Like the repeal of INA § 212(c) in St. Cyr, the interim rule eliminates 212(h) waivers for those who are statutorily eligible under INA § 212(h)(1)(A) or § 212(h)(1)(B), but have been convicted of a "violent or dangerous crime" and cannot demonstrate "exceptional and extremely unusual hardship." Given that 212(h)(1)(B) waivers have been available since the 1950s, and 212(h)(1)(A) waivers have been available since 1991, numerous noncitizens who are no longer eligible for those waivers as a result of the interim rule would have relied on availability of a 212(h) waiver at the time of their conviction. To apply the interim rule to these individuals would clearly disrupt their reasonable reliance and settled expectation that they would be eligible to apply for a 212(h) waiver despite the nature of their criminal offense or the ability to demonstrate exceptional and extremely unusual hardship.

Nor should it matter that the interim rule ostensibly governs the Attorney General's exercise of discretion. The Supreme Court affirmed in St. Cyr that the fact that a relief is discretionary should not affect the retroactive effect of a law that limits or repeals the relief. As the Court observed, [t]here is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation. St. Cyr at 325.

For the foregoing reasons, the interim rule should be clarified to reflect that it should not apply to an applicant for a 212(h) waiver whose underlying criminal conviction took place on or before January 27, 2003.

V. Conclusion

The interim rule should be withdrawn because it exceeds statutory authority and nullifies the very statute that it is suppose to implement. If it is not withdrawn, the rule should be amended immediately to indicate that it will not apply to noncitizens who were convicted of a criminal offense on or before January 27, 2003. In the alternative, the Attorney General should issue instructions to the Immigration and Naturalization Service and the Executive Office for Immigration Review to clarify that the rule should not apply to noncitizens who were convicted of a criminal offense on or before January 27, 2003.


Respectfully submitted,



J. Traci Hong
Staff Attorney
American Immigration Law Foundation, Legal Action Center

1 Congress added the text of subsection § 212(h)(1)(A) to INA § 212(h) in the Immigration Act of 1990 ("IMMACT 90"). 104 Stat. at 5067-77 (effective June 1, 1991). Later, it amended § 212(h) in the Miscellaneous Technical Immigration and Naturalization Amendments of 1991 ("MTINA") and separated subsection § 212(h)(1)(A) from subsection §212(h)(1)(B) to make it clear that these were two different waivers. 105 Stat. 1733 (enacted Dec. 12, 1991). See Matter of Alarcon, 20 I & N Dec. 557 (BIA 1992).