Convictions for aggravated felonies, I often say, are the death of your Green Card, unfortunately. This depends on when the conviction was and depending on whether it’s an aggravated felony. Immigration sometimes will take the position that certain crimes are aggravated felonies, but a good immigration lawyer may be able to argue that it’s not an aggravated felony. Just because Immigration says it’s an aggravated felony doesn’t necessarily make it so.
Assuming worst case scenario, and you do have a conviction for an aggravated felony, if you have a Green Card, then it’s going to be very hard to keep that Green Card unless you can qualify for political asylum in some capacity. Generally, it would be the convention against torture or withholding of removal, which are complicated issues to deal with, but keeping in mind that it’s essentially the same as a political asylum claim. In those cases, you might be eligible to fight and stay in the United States, although, you probably would lose your Green Card.
In other instances, the only way that you might be eligible to stay in the United States if you have a Green Card and an aggravated felony is if you got your Green Card here in the United States and you adjusted status. This is really only true for certain circuits, Wisconsin being one of them, that you would be eligible for a 212(h) waiver if you were eligible for a Green Card based on an immediate relative relationship, such as a child who is a United States citizen or a spouse who is a United States citizen. If you adjusted status in the US and you have an immediate relative that can apply for you again, then you would be eligible for a 212(h) waiver. If you got your Green Card through the consulate and processed your visa abroad, generally, your A-Number starts with a 40 digit, then most likely you’re not going to be eligible to keep your Green Card.
Interestingly, if you don’t have a Green Card, and you’ve never had a Green Card, and you have a conviction for an aggravated felony, excluding drug offenses, you would be eligible to apply for a Green Card for the first time if you were eligible with a 212(h) waiver, as long as you were eligible for that as well. If you entered the United States illegally, have been here illegal your whole life, but happen to be married to a United States citizen and have an aggravated felony conviction, then you would be eligible to apply for the Green Card with a 212(h) waiver. Just keep in mind if that waiver is denied, it is very likely you would be placed into removal proceedings, and you would have to renew that application before an Immigration judge.
Whether or not you have an aggravated felony and can stay in the United States, (A), depends on your status, whether you’re a Green Card holder or not. Then also will depend on when the conviction was. If your conviction was before April 30, 1996, and it’s an aggravated felony, you probably will be eligible for a 212(c) waiver, and be able to keep and fight for your Green Card, or remain in the United States. Again, if the conviction is before April 30, 1996, then, yes, you probably will be eligible to fight for a 212(c) waiver. If it was after April 30, 1996, you most likely will lose the Green Card unless you adjusted status here and can reapply for it, or you fall under a category you have a claim for political asylum.
If you have questions about whether your conviction makes you removable, whether it’s an aggravated felony, are there any arguments to be made to say it’s not an aggravated felony, and what relief is available to you, please contact my office. These are complicated issues and complicated cases, and we’d be happy to help you with it.
Sesini Law Group is an experienced immigration law firm, practicing in Green Bay and Milwaukee, WI. Please contact the office with any questions you may have and set up your initial consultation.