- Introduction: Matter of Hranka, 16 I&N Dec. 491 (BIA 1978)
- Relevant Statute
- Facts and Procedural History of Matter of Hranka: 16 I&N Dec. at 491-92
- Examining Incidental Effect of Reduced Sentence on Matter of Hranka Analysis
- Legacy INS GENCO Opinion Applying Matter of Hranka
On April 6, 1978, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Hranka, 16 I&N Dec. 491 (BIA 1978) [PDF version]. Despite its age, the decision remains good law today. Matter of Hranka set forth the three factors that must be weighed together by adjudicators in considering requests for waivers under section 212(d)(3) of the Immigration and Nationality Act (INA) [see section]. Section 212(d)(3) allows for the temporary admission of certain aliens who are otherwise inadmissible to the United States, provided that they have requisite documentation or a waiver of the documentation requirement.
In this article, we will examine the three factors set forth in Matter of Hranka, subsequent citations to the decision, and what the standing precedent means today.
The following is the current section 212(d)(3) of the INA:
Matter of Hranka involved a 25-year old native and citizen of Canada who was inadmissible to the United States because she was previously deported from the United States for having engaged in prostitution (note: under the old section 212(a)(12) of the INA).
The applicant sought a waiver under section 212(d)(3) for advance permission to enter the United States as a nonimmigrant visitor. The District Director of the then-Immigration and Naturalization Service (INS) denied her waiver request on two grounds:
- Too little time had elapsed since the applicant's deportation in order to permit a determination that she had been rehabilitated; and
- There were no “compelling humanitarian … circumstances involved” in the applicant's desire to enter the United States.
The applicant appealed from the District Director's decision to the Board.
The Board disagreed with the District Director's determination that the applicant had not been rehabilitated. In support of its conclusion, it cited to evidence in the record regarding the applicant's work and statements in support of her rehabilitation from her mother and her high school principal, who was also a psychologist and close friend of the family. While the Board agreed with the District Director's finding that her reasons for wanting to enter the United States were not “compelling,” the Board disagreed that this represented a ground for denying the application, stating that “there is no requirement that the applicant's reasons for wishing to enter the United States be 'compelling.'”
The Board stated the purpose for which Congress created the section 212(d)(3) waiver:
“Congress provided for this procedure because it recognized that there are cases where the temporary admission of otherwise inadmissible aliens is desirable for humane reasons or for reasons of public interest.”
In light of the language of section 212(d)(3) and its purpose, the Board set forth the following three factors that must be weighed in considering whether the granting of a request under section 212(d)(3) is appropriate:
- The harm to society if the applicant is admitted.
- The seriousness of the applicant's prior immigration law or criminal law violations, if any.
- The nature of the applicant's reasons for wishing to enter the United States.
These three factors are the lasting legacy of Matter of Hranka, and adjudicators continue to weigh them together when assessing requests for relief under section 212(d)(3).
The Board applied its three factors to the applicant in Matter of Hranka and reached the following conclusion with respect to each factor:
- The Board determined that the applicant would present a very low risk to American society were she permitted to enter the United States.
- The Board noted that the applicant had no other criminal or immigration law violations aside from her previously having violated the immigration laws at the time by engaging in prostitution.
- The Board found that the applicant's having relatives in Detroit was a “substantial reason” for her desiring a waiver.
Based on its application of the three factors to the applicant's case in Matter of Hranka, the Board granted her request for advance permission to enter as a nonimmigrant under section 212(d)(3).
On December 12, 2005, the United States Court of Appeals for the Second Circuit issued a published decision in United States v. Hamdi, 432 F.3d 115 (2d Cir. 2005) [PDF version], in which the court took into account that Hranka invites consideration of the length or nature of a sentence imposed upon an alien for criminal activity in determining whether he or she merits the favorable exercise of discretion under section 212(d)(3).
It is worth noting that the decision was authored by current Supreme Court Justice Sonia Sotomayor, who was then a judge on the Second Circuit.
The appellant, Ali Hamdi, was a native and citizen of Tunisia. He had been convicted by guilty plea in Federal court of knowingly producing identity documents without lawful authorization. He subsequently served his sentence and was removed on immigration charges based on his criminal conviction.
Hamdi appealed his sentence but completed it before his appeal was completed. At primary issue in Hamdi was whether his appeal of his sentence was a live issue. He argued that the completion of his sentence and his subsequent removal from the United States did not moot his appeal.
Hamdi advanced several arguments that his appeal was not moot. Hamdi argued that were he to prevail on appeal, a modification on appeal of his judgment of conviction by the reduction of his sentence would have a potentially positive impact on a future application for a section 212(d)(3) waiver. Hamdi would be unable to secure admission into the United States without such a waiver because he had been found to have been convicted of a crime involving moral turpitude (CIMT) under the immigration laws.
Then-Judge Sotomayor cited to the three factors in Hranka as precedent for adjudicating section 212(d)(3) waiver requests. In doing so, Judge Sotomayor also cited to several unpublished BIA decisions in stating that “Hamdi correctly notes that the length of his sentence is material to the Attorney General's assessment of both the seriousness of his criminal conviction and the risk of harm to society posed by his admission…” As a result, Judge Sotomayor determined that “a non-trivially lower sentence would bear on two of the three relevant criteria under Hranka for a [section] 212(d)(3) waiver and would likely be interpreted by the Attorney General as indicative of less serious conduct, and of a lower risk of harm to society were Hamdi to be readmitted, than Hamdi's criminal record currently reflects.” Judge Sotomayor concluded that Hamdi's claim for standing in his appeal on this ground was “not unduly speculative or remote.”
For section 212(d)(3) waiver purposes, the main significance of Hamdi is the Second Circuit's now-precedential conclusion that the length of a sentence should be weighed in assessing two of the three Matter of Hranka factors. Interestingly, there is no published BIA precedent on the issue, which Judge Sotomayor noted in explaining why she looked to a series of unpublished BIA decisions. To date, Matter of Hranka was cited to only once in a published BIA decision. In Matter of Khan, 26 I&N Dec. 797, 798 (BIA 2016) [see article], the Board noted that the Immigration Judge had applied Matter of Hranka in considering a respondent's eligibility for a section 212(d)(3) waiver.
When an alien is facing criminal charges, an experienced immigration attorney may be of assistance in explaining the consequences that different sentences may have on the alien's future immigration prospects. In some cases, the length or type of sentence imposed may be decisive as to whether the alien will be inadmissible and/or removable. In other cases, it may weigh in whether the alien would be eligible for future benefits and/or discretionary relief, such as a section 212(d)(3) waiver.
On June 12, 1991, then-INS General Counsel Paul W. Virtue issued Genco Op. No. 91-48 (INS), 1991 WL 1185159.
The question involved an applicant who was seeking, among other things, a section 212(d)(3) waiver. The applicant had been placed in deportation proceedings for failing to maintain his H1 status. During deportation convictions, he had been convicted of an aggravated felony drug offense. The applicant did not dispute his inadmissibility under the immigration laws at the time for his drug conviction, for having been convicted of a crime involving moral turpitude (CIMT), and for being a chronic alcoholic. The applicant applied for H1B classification and advance permission to reenter. He submitted a letter from his employer, the National Hockey League's (NHL's) Detroit Red Wings, in support of his applications.
Virtue analyzed the case with respect to the three factors in Matter of Hranka.
Regarding the first factor, Virtue explained that the applicant was presumed to be a danger to the community on the basis of his conviction for importation of cocaine, which was his aggravated felony conviction. Virtue noted that an aggravated felony is presumed to be a “particularly serious crime,” which in and of itself meant that the applicant must be considered a danger to the community.
Regarding the second factor, Virtue explained that the conviction was serious considering Congress's treatment of aggravated felonies under the immigration laws.
Finally, Virtue addressed the reasons that the applicant was seeking admission. The applicant wished to enter the United States “as a contract professional hockey player.” He also sought to enter the United States for medical treatment.
Virtue explained that the applicant's desire to enter the United States as a contract professional hockey player “may not be compelling,” noting that “[t]he opportunity to play professional hockey in Canada does not appear to be foreclosed.” He explained that in the suspension of deportation context, the United States Court of Appeals for the Ninth Circuit held in Carnalla-Munoz v. INS, 627 F.2d 1004 (9th Cir. 1980) [PDF version], that an alien facing potential financial detriment if he or she is denied relief is insufficient to establish extreme hardship. The Ninth Circuit reached a similar result in Kasravi v. INS, 400 F.2d 675 (9th Cir. 1968) [PDF version], with regard to cases where an alien would be unable to find suitable employment for his or her level of skill in his or her home country when compared to the United States.
Citing to Matter of Edwards, 10 I&N Dec. 506 (BIA 1963) [PDF version], Virtue listed other discretionary factors that may be considered:
- Employment history;
- Property or business ties in the United States;
- Evidence of value and service to the community;
- Proof of genuine rehabilitation if a criminal record exists; and
- Evidence of good moral character.
Virtue added that where an applicant has a criminal record, “rehabilitation must be ordinarily established.”
He also stated that the following factors may be considered:
- Family ties within the United States;
- Previous residence of long duration in the United States (and whether such residence commenced at a young age);
- Hardship to the applicant and family if relief is denied; and
- Service in the U.S. armed forces.
Although Virtue's opinion is dated and advisory, it provides an interesting and detailed look of how adjudicators may apply Matter of Hranka and other more specific factors that may be considered within the Matter of Hranka rubric.
Matter of Hranka remains influential in the section 212(d)(3) context. An alien who is inadmissible and seeking status in the United States should consult with an experienced immigration attorney for case-specific guidance. If it is determined that the alien's best course of action is to seek advance permission to enter under section 212(d)(3), an experienced attorney may help him or her establish a case for relief. To learn more about other immigration waivers, please see the full section of our site for more articles [see category].