Written by attorney Khaja M. Din

Adjustment of Status After 2 Convictions For Aggravated Discharge of Firearm

This Work Product Belongs To Attorney Khaja Din of the Din Memmen Law Firm. For assistance in your immigration case please feel free to contact the law firm of Din Memmen on the web at www.DinMemmen.comto arrange a consultation.

Memorandum for Eligibility for Adjustment of Status After Two Convictions For Aggravated Discharge Of A Firearm

Question:Is Client eligible for adjustment of status with two convictions?

  1. Aggravated Discharge of Firearm: Occupied Vehicle (custody date: 12-2-2004)

  2. Aggravated discharge of Firearm: Occupied Vehicle (custody date: 7-28-2006)

Short Answer: Client can apply for a 212(h) waiver together with his adjustment of status application. The 212(h) waiver is discretionary relief and therefore may be granted if Client can show enough positive factors. Please see detailed analysis below.

I.Aggravated discharge of firearm is an aggravated felony and a crime of moral turpitude

Client was convicted twice of aggravated discharge of a firearm in violation of Illinois Statute 720 ILCS 5/24-1.2(a)(2), which provides in relevant part as follows:

§ 24-1.2. Aggravated discharge of a firearm.

(a) A person commits aggravated discharge of a firearm when he or she knowingly or intentionally:

[. . . ]

(2) Discharges a firearm in the direction of another person or in the direction of a vehicle he or she knows or reasonably should know to be occupied by a person.

A.Aggravated Felony

The Seventh Circuit in Quezada-Luna v. Gonzales held that aggravated discharge of a firearm pursuant to 720 ILCS 5/24-1.2(a)(1) is an aggravated felony , 8 U.S.C. § 1227 (a)(2)(A)(iii), and a firearms offense, 8 U.S.C. § 1227 (a)(2)(C), making the alien removable and permanently inadmissible to the United States.

While Client’ conviction is an aggravated felony, since he is not a legal permanent resident he can still qualify for 212(h) waiver.

B.Crime of moral Turpitude

A noncitizen is also deportable if he or she: (a) is convicted; (b) of two or more crimes involving moral turpitude (c) that did not arise out of “a single scheme of criminal misconduct." 8 U.S.C. § 1227(a)(2)(A)(i), INA § 237(a)(2)(A)(i).

In determining whether an offense involves moral turpitude, a fact finder examines the crime as defined by the elements in the criminal statute, not the defendant’s actual conduct. Matter of Short, 20 I&N Dec.136 (BIA 1989). A conviction under a statute in which theft, fraud, or intent to commit bodily harm is an essential element involves moral turpitude. It is the elements of the offense that determine whether a conviction is a crime involving moral turpitude, not the name or designation of the offense.

A noncitizen is inadmissible for a single conviction for a crime involving moral turpitude unless the person qualifies for the petty offense exception or youthful offender exception. 8 U.S.C. § 1182(a)(2)(A)(ii), INA § 212(a)(2)(A)(ii).

The petty offense exception applies when:

(a) A noncitizen has committed a single offense that involves moral


(b) The maximum possible punishment is a year or less; and

(c) The noncitizen received a sentence of six months or less.

The youthful offender exception applies when:

(a) A noncitizen has committed a crime involving moral turpitude while

under the age of 18; and

(b) Any imprisonment for the offense ended more than five years before the

current visa application.

The youthful offender exception does not apply to Client because he was tried as an adult even though he was seventeen years of age. For the purposes of immigration law, a juvenile delinquency proceedings brought against a minor alien pursuant to federal law has no immigration consequences. However, any alien juvenile prosecuted by the State sovereign as an adult suffers immigration consequences, but an alien juvenile treated by the State sovereign as a juvenile delinquent does not. Savchuck v. Mukasey, 518 F.3d 119, 122 (2d Cir. 2008); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007); Vieira Garcia v. INS, 239 F.3d 409, 413-14 (1st Cir. 2001). Therefore, Client will face immigration consequences even for his first conviction.

II.212(h) Waiver for Aggravated Felonies and Crimes of Moral Turpitudes

A 212(h) waiver, is granted, waives the following criminal grounds of inadmissibility:

  1. Crimes involving moral turpitude. INA § 212(a)(2)(A)(i)(I)

  2. A single offense of simple possession of 30 grams or less of marijuana. INA §§ 212(a)(1)(A)(i)(II) & 212(h)

  3. Multiple criminal convictions where aggregate sentence was 5 years or more. INA § 212(a)(2)(B).

  4. Prostitution and commercial vice activities. INA § 212(a)(2)(D).

  5. Serious criminal offense involving a grant of immunity. INA § 212(a)(2)(E).

There are two steps to adjust status with a waiver. First the immigrant must be eligible for adjustment of status pursuant to INA § 245 (8 U.S.C. § 1255):

“Attorney general may, in her discretion, adjust the status of an alien inspected and admitted or paroled into the United States to that of an alien lawfully admitted for permanent residence if the alien applies for adjustment, the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and a visa is immediately available.

In conjunction with the petition the alien must submit a 212(h) waiver. The elements of a 212(h) waiver are as follows:

(1) the immigrant must show that he is the spouse, parent, or son or daughter of a U.S. citizen or LPR and

(2) that they would suffer extreme hardship if the qualifying relative is denied admission.

The 212(h) waiver is available to non-legal permanent residents who committed an aggravated felony. In re Michel, 21 I&N Dec. 1101, 1104 (BIA 1998). The applicant also bears the burden of demonstrating that his application merits a favorable exercise of discretion. See Matter of Marin, 16 I&N Dec. 581, 584-585 (BIA 1978). Each case must be judged on its own merits and both adverse and positive factors should be considered. Id.; Matter of Edwards, 20 I&N Dec. 191, 196 (BIA 1990). Adverse factors may include the existence of a criminal record and its nature, recency, and seriousness; the nature and underlying circumstances of the ground leading to removal and additional significant violations of the immigration laws; and other evidence indicative of the alien’s bad character or undesirability as a lawful permanent resident. Matter of Marin, 16 I&N Dec. at 584-585. Positive factors include family ties within the United States, residence of long duration in this country, hardships to the alien and his family if he is deported, property ownership or business ties, demonstrated value and service to the community, genuine rehabilitation if a criminal record exists, and any other evidence attesting to the alien’s good character.Id. The severity of adverse factors in a particular case may require the alien to introduce additional offsetting favorable evidence which may involve “unusual" or “outstanding" equities.Id.

III. Violent and Dangerous Crimes

If the court construes this as a violent and dangerous crime than Client can still be eligible for 212(h) waiver, however, he must meet the extraordinarily high standard articulated in 8 CFR 212.7(d), which provides in relevant part as follows:

The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, […] in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.

IV.Visa Overstay

Due to Client’ illegal presence he will face a ten year bar from reentering the United States. INA § 212(a)(9)(B)(i)(II). Any period of time that an alien spends unlawfully in the United States while under the age of 18 would not count toward calculating the accrual of unlawful presence for purposes of INA 212(a)(9)(B).

An immigrant waiver is available in the case of the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. 212(a)(9)(B)(v).

Visas for spouses, parents, and children under 21 are immediately available, while visas for children over 21 and for brothers and sisters of US citizens are subject to a yearly cap imposed by Congress. In order to qualify for adjustment and 212(h) waiver Client must have an immediately available visa petition. Due to the fact that he is over 21 years of age he will not qualify as an immediate relative of his United States citizen mother.

This Work Product Belongs To Attorney Khaja Din of the Din Memmen Law Firm. For assistance in your immigration case please feel free to contact the law firm of Din Memmen on the web at www.DinMemmen.comto arrange a consultation.

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