Eleventh Circuit Says No to Nunc Pro Tunc Stand-Alone 212(h) Waiver

A waiver of certain criminal grounds of inadmissibility under section 212(h) of the Immigration and Nationality Act (INA) is available to individuals applying for a visa, admission or adjustment of status. A lawful permanent resident may obtain a waiver only if he or she is an applicant for admission after a trip abroad or assimilated to the position of an applicant for admission by applying for an adjustment of status. In 2012, the United States Court of Appeals for the Eleventh Circuit held, in Poveda v. U.S. Att’y Gen., that a section 212(h) waiver without a concurrent adjustment of status filing (stand-alone waiver”) is not available to an alien in removal proceedings.

On September 3, 2014, the United States Court of Appeals for the Eleventh Circuit also held, in Rivas v. Att’y Gen., that a removable (deportable) noncitizen may not obtain a retroactive (nunc pro tunc) stand-alone 212(h) waiver. Pursuant to Poveda, the Respondent in Rivas was not eligible for a stand-alone waiver as he was charged as a removable alien after the denial of an application for U.S. citizenship. He was not charged as an arriving alien applying for admission after a trip abroad. The Respondent in Rivas requested a retroactive nunc pro tunc waiver, arguing that he had traveled abroad on several occasions after his criminal convictions and that he could have applied for a stand-alone 212(h) waiver at the time he returned from each trip abroad. The Eleventh Circuit rejected this argument, reasoning that to allow a nunc pro tunc waiver to a removable alien who has not concurrently filed adjustment of status application would render Congress’s recent addition of the “adjustment of status” language superfluous.

Considering the above decisions, it is imperative to evaluate the immigration consequences of criminal charges and activities in advance of international travel and before the filing of any applications for immigration benefits. It is also critical for non-U.S. citizens who have been charged with a crime to contact immigration counsel early in the criminal process in order to assess the consequences of a conviction and to work out a strategy with criminal counsel that would not jeopardize the client’s immigration status.

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