601 Waiver Legal News: 212(h) Waiver Approved for Marijuana Conviction

I601 Waiver Approval

The applicant in this case is a citizen of Zimbabwe who was found inadmissible to the United States due to a conviction in 1998 for possession of less than 20 grams of marijuana.  He also had a theft conviction in 1993, a trespass conviction from 1996, a conducting business without occupational license in 1997, and driving without a license twice in 1996.

He married his U.S. citizen spouse in 1998, had a child together with her in 2000.  After his marriage to his wife, he was never convicted of another crime.   He worked successfully as an electrician, contributing towards the household expenses including property payments and automobile leases.  He attended night school in computer science, paid IRS taxes together with his wife, and shares a strong and close bond with his child.  The applicant’s spouse submitted country conditions for Zimbabwe, stating that it would be dangerous for her and their child to move to Zimbabwe.  She also submitted medical information for her child, citing the lack of adequate medical care in Zimbabwe if they were forced to move there.  She also stated that she would suffer financial hardship without the money contributed by her husband.

Section 212(h) of the Immigration & Nationality Act states that:

The Attorney General [Secretary of Homeland Security) may, in his discretion, waive the application of subparagraph (A)(i)(I), (B), . .. of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if – (1) (A) in the case of any immigrant it is established to the satisfaction of the Attorney General that:

(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status.

(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States,. and

(iii) the alien has been rehabilitated; or

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen.

The AAO did not rule on extreme hardship.  However, it did find that the applicant demonstrated rehabilitation and that his admission to the United States would not be contrary to the national welfare, safety, or security of the United States.

The important take-away from this case is the turning point in the applicant’s life (his marriage to his wife and birth of their child), after which he changed his life and was never again convicted of any crimes.  He became a devoted husband and father, worked as an electrician to support his family, went to school in the evening to better himself, paid his taxes, and became an ethical and contributing member of society.  The fact that all of his convictions occurred over 15 years ago was also a favorable factor in this case.

Thus, it is often useful and persuasive to show a “turning point” in an applicant’s life.  Every applicant claim rehabilitation from past bad behavior in their waiver applications.  I always try to find an important event in my client’s life that made him realize the full consequences of his past mistakes.  I highlight that life-changing event, and then demonstrate the changes that occurred as a result of it.