If you have a crime that makes you deportable, in certain circumstances you can apply for relief to stay in the United States. The earlier the conviction was, probably, the better off you are. In 1996, the laws changed drastically and limited the availability of waivers or relief that people are eligible for. If you have a green card, and you’ve been convicted of an aggravated felony, unfortunately, it’s probably very little waivers or little you can do to stay in the United States to fight for the green card aside from making some type of asylum claim if you qualify for it.
Other than that, if you have a green card, and you have an aggravated felony, you most likely will not be eligible for a waiver. In certain circumstances, though, if you have an aggravated felony, and you got your green card here in the United States, and you have a way to obtain your green card again through marriage to a citizen or a child who’s over 21, you will be eligible for a green card again with a waiver. That’s only if you got your green card here in the United States.
Before 1996, we had a waiver called 212(c). If you had a green card and a conviction that makes you removable, and you had the conviction prior to April 30, 1996, then you would be eligible for a 212(c) waiver. As long as you had your green card and you had not served five years in jail. After 1996, the law changed, and it was much more strict. In order to be eligible for a waiver, if your crime occurred after April 30, 1996, you might be eligible for something called cancellation of removal.
Cancellation of removal replaced 212(c) but with much stricter parameters. In order to be eligible for cancellation of removal, you have to have a green card for five years. You have to have been in the United States seven years prior to the commission of your crime that makes you inadmissible. If you entered with a visitor’s visa seven years ago, and then you got your green card five years ago, you would be eligible for cancellation and removal, and you can’t have been convicted of an aggravated felony. If those three things are met, then you should be eligible for a green card.
Generally, people do meet the requirement that they have a green card for five years. That five-year physical presence keeps running. If you’re before an Immigration Judge and you’ve only had your green card for four and half years, you’re still going to be eligible for cancellation. As long as, on the date of your individual hearing, you’ve been with a green card for five years.
The trickier part is the seven years because you have to have been in the United States for seven years prior to committing the crime. If you entered on a visitor’s visa in 2002, and then in 2004 you got convicted of a drug offense, you’re not going to have the seven years because your crime cut off your time. If you came to the United States with a visitor’s visa in 2002, and then seven years later committed your crime, you’re going to be eligible. You’re at least going to have the seven years.
Then the third problem, which is also difficult for many people, is that you cannot be convicted of an aggravated felony. That’s where I say, if you have an aggravated felony, you might not be eligible for any type of waiver unless it was prior to 1996. If those three things, statutory requirements, are met, then you can apply for cancellation of removal. Then it becomes discretionary decision by the Immigration Judge.
The judge has the discretion whether or not you should be allowed to stay in the United States. They’re going to look at your family ties, the hardship to you if you’re not allowed to stay in the United States, the hardship to your family if you’re not allowed to stay, your employment history, if you’ve been in the military, if you’ve done community service, and of course, very importantly, your rehabilitation. Do you own up to the crime? Have you taken responsibility for it, and have you changed?
If you can demonstrate that and the judge finds there are more positive factors than negative factors, the negative being a criminal history, not paying taxes, not paying child support – hopefully, just the criminal history is going to be the issue, but if there’s more positive than negative, then, hopefully, the judge will grant your case, your cancellation of removal case, and allow you to stay in the United States. The criteria I outlined is the same for 212(c), and you should be eligible for that if your crime occurred before April 30, 1996. There is a whole host of other waivers and ways you can stay in the United States. These two are the most commonly used ones for criminal convictions.
The Sesini Law Group is an experienced immigration law firm serving Wisconsin. If you have questions regarding your specific case, please contact our law firm to set up an initial consultation.