Rivera-Peraza v. Holder

An alien seeking permanent resident status through a waiver of inadmissibility under §1182(h)(1)(B), and who is also subject to §1212.7(d) due to a conviction of a “violent or dangerous crime,” must first meet the threshold discretionary demonstration of hardship as defined by §1182(h)(1)(B), followed by the additional discretionary requirement that the alien and family members face “exceptional and extremely unusual hardship.”

Petitioner Rafael Rivera-Peraza (Rivera) sought review of the Board of Immigration Appeals (BIA) decision that affirmed an Immigration Judge’s denial of his application for waiver of inadmissibility. In 1981, Rivera was convicted of armed robbery with a firearm. After serving several years of his sentence, Rivera was deported back to Mexico. He later entered the United States at least twice without inspection, for which the government commenced a removal proceeding against him in 2004. Despite admitting removability, Rivera moved for an adjustment of his status to become a lawful permanent resident under waivers of inadmissibility, under § 1182(h)(1)(A) (“the rehabilitation waiver”) and (B) (“the hardship waiver”). Rivera’s prior conviction of a “violent or dangerous crime” required that the hardship standard of § 1182 (h)(1)(B) also be qualified by §1212.7(d), which requires that the applicant clearly show that “denial of . . . admission . . . would result in exceptional and unusual hardship,” as opposed to the less stringent requirement of §1182(h)(1)(B), that requires the applicant to show “extreme hardship to the United States citizen or lawfully resident spouse, parent, son or daughter of such alien.” The Ninth Circuit rejected Rivera’s contention that §1212.7(d) improperly heightens the hardship standard because the two sections deal with differing circumstances for the waivers and it was improper for the heightened standard of §1212 to supplant the threshold eligibility requirement in §1182(h)(1)(B). Instead, the two standards measure the hardship impacting two different groups of people, and the §1212.7(d) only applies to the applicant “after the [applicant] has met the threshold requirements [of §1182(h)(1)(B)].” AFFIRMED.