Second Circuit Narrowly Interprets Aggravated Felony Bar Under INA § 212(h)

Second Circuit Narrowly Interprets Aggravated Felony Bar Under INA § 212(h)

Thanks to the U.S. Court of Appeals for the Second Circuit, New York City immigration attorneys will find it easier to defend lawful permanent residents (LPRs) in removal proceedings involving aggravated felonies.

The January 8, 2015 decision of Husic v. Holder expanded the possibility of §212(h) defenses for larger groups of immigrants by clarifying eligibility for those waivers. One defense includes avoiding deportation if a petitioner can prove his or her removal will result in extreme hardship to close US citizen or LPR family member remaining in the U.S. This relief from removal defense opens up possibilities to rehabilitated felons to fight their deportation and remain in the U.S. with their loved ones.

This review explains the court’s decision and how it assists an immigration attorney in New York City in defending clients in deportation and removal proceedings.

Case Background

Immigrants with LPR status are not citizens but they reside in the U.S. legally as a permanent resident. It is not uncommon for people to enter the country as a visitor and later apply for permanent residency, i.e. green card. The petitioner in this decision, Hasim Husic, fell under this category.

Husic was a citizen of Montenegro, once part of the former Yugoslavia. He arrived in the U.S. on July 5, 1994 and was granted political asylum in 1995. On July 28, 1998, he was granted LPR status, along with his wife and three children. One child is currently a U.S. citizen.

On or around August 21, 2012, Husic faced a criminal conviction and pleaded guilty to attempted criminal possession of a weapon in the second degree, a violation under New York Penal Code. He faced three years in prison.

On February 11, 2013, Husic received a Notice to Appear for removal proceedings indicating the filing of deportation case against him. He admitted a charge of removability under the weapons offense but denied two other charges based on aggravated felonies. His immigration attorney applied for a waiver under INA § 212(h).

The immigration judge determined that Husic was not eligible for 212(h) waiver because he was already admitted to the U.S. and he is a LPR. Husic’s immigration attorney argued that admission in this context means the time a person entered the U.S. as a lawful permanent resident and since Husic was granted status as an LPR only after he entered the U.S. as a tourist, 212(h) waiver applies. Appeals continued until the Second Circuit decided this issue.

Second Circuit Court Decision

In its decision, the Second Circuit held that Husic, a convicted felon is eligible to apply for a 212h waiver since he was not admitted to the U.S. when he first entered and due to his extensive family connections in the U.S. mainly his U.S. citizen children and wife of 39 years.

However, that status change could not happen if he was previously admitted to the United States for permanent residence. This led the court into a discussion of defining ‘admitted’ and ‘admission’ to determine if he was an LPR at the time of his admission to the U.S.

The Second Circuit adopted the narrow definition of ‘admission’ also emphasized by other circuits; The lawful entry of an alien into the United States after authorization by an immigration officer. This takes admission to the day Husic stepped off an airplane and checked in with border and custom officers. Therefore, the court concluded that since Husic was not admitted to LPR when he entered the U.S. but rather was admitted as a tourist at the time of his entry he was eligible to apply for a the relief offered by INA § 212(h) waiver.

How Does This Help Immigrants?

A NYC immigration attorney can now keep a criminal immigrant or an immigrant felon residing in the U.S. as this ruling opens up more possibilities to prevent deportation. Before, if LPR status was acquired any time after entry and the immigrant committed a felony, there were few options to prevent deportation. Many ended up separated from their families for one criminal conviction or plea.

Now, it is clear that those who entered the U.S. and only later received their green card can enjoy the deportation relief under INA § 212(h) if they can prove they have been rehabilitated and that a close family member who is a US Citizen or lawful permanent will suffer extreme hardship if they will be deported.

Facing deportation or removal proceedings after a criminal conviction? Contact an experienced immigration attorney in New York City at Feiner & Lavy, P.C. by calling (212) 571-9200.