Immigration
Violations Under
INA Sec. 212(a)(9)
Sarah Bronstein and
Susan Schreiber
May 25, 2012
Austin, TX
HOW MANY PROBLEMS CAN YOU
HAVE AT ONCE?
Ana, a citizen of Mexico, entered the U.S. on a tourist
visa in 2005. In March 2007, Ana was arrested in a
factory raid and placed in removal proceedings. In
July 2007, the judge granted her 90 days voluntary
departure, but Ana didn’t leave until December 2008,
when she returned to Mexico to visit her sick mother.
After a month, Ana tried to enter the U.S. with a fake
border crossing card but she was detained at the border
and didn’t get in; she came back to the U.S. without
inspection 2 weeks later. Her 4th preference PRD
is current now and she wants to apply for adjustment of
status under 245(i). What should you tell her?
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INA SEC 212(a)(9): THE
THREE-HEADED MONSTER – Aliens with prior expulsion orders
seeking readmission
(212(a)(9)(A))
– Aliens with accrued unlawful
presence seeking readmission
(212(a)(9)(B))
– Aliens with accrued unlawful
presence (more than one year)
on or after April 1, 1997 or prior
removal order at any time, who
seek to reenter or reenter
unlawfully (212(a)(9)(C))
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Different kinds of orders = different periods of bars
to admission:
• FIVE-YEAR BAR
– Expedited removal order
– Removal initiated at arrival
• TEN-YEAR BAR
– Removal order
– Deport or exclusion order
• TWENTY-YEAR BAR FOR SECOND REMOVAL
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212(a)(9)(A): WHAT DOES IT MEAN?
Pierre was deported to Paris in August
2003 when he violated his student visa by
working without authorization. Pierre’s
priority date to immigrate under 4th
preference category is now current. He is
inadmissible until 2013 because of his
removal order in 2003.
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212(a)(9)(A) IN ACTION
• I-212 Application for permission to reapply for admission
• Form I-212
• No extreme hardship requirement
• Application decided by balancing positive and negative factors
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AVOID THE WAIT?
PRACTICE CHALLENGE: WAS
YOUR CLIENT DEPORTED?
Your new client Adriana has a current
PRD and wants to apply for adjustment of
status under 245i. She tells you that she
first tried to enter the U.S. in April 1999
but was apprehended at the border and
had to return. She tried again the next
week and was successful and she’s been
here ever since. How can you determine
if she has a deportation order? 7
3 YEAR BAR:
• Unlawfully present
• More than 180 days
• On or after April 1,
1997
• Voluntary departs
• Before proceedings
• Departure stops time
10 YEAR BAR:
• Unlawfully present
• 1 year or more
• On or after April 1,
1997
• Voluntary departs or is
removed
• Departure stops time
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212(a)(9)(B): 3 AND 10 YEAR BARS:
WHAT IS UNLAWFUL PRESENCE?
• Overstay authorized period of stay
• Present without admission or parole
• IJ or CIS determines status violation
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CALCULATING
UNLAWFUL PRESENCE
• Triggered by departure
• Don’t count in the aggregate
• Example: Ann entered the U.S. in 1996 without inspection. She has never left the U.S. and she is now eligible to apply for adjustment of status. This inadmissibility ground does not apply to Ann because she hasn’t departed the U.S. after accruing unlawful presence.
• Bonus: what happens if Ann travels on advance parole?
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UNLAWFUL PRESENCE:
STATUTORY EXCEPTIONS
-time under age 18
-time while bona fide asylum pending, if no unauthorized employment
-time in family unity status
-abused spouses, children where show substantial connection between abuse suffered and violation of nonimmigrant status
- trafficking victims where trafficking was one central reason for unlawful presence
-time while timely-filed non-frivolous application for ext. or change of status pending unless employed without authorization
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UNLAWFUL PRESENCE:
OTHER EXCEPTIONS IN AFM
-time in VD status
-time in deferred action status
-time with pending adjustment app
-TPS status
-CAT grant
-legalization applicants
-refugees, asylees
-Deferred Enforced Departure (DED)
-NACARA applicants
-Conditional residents with terminations on appeal
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UNLAWFUL PRESENCE AND
DURATION OF STATUS
Where person admitted for “duration of
status”, no unlawful presence accrued
unless and until determination of status
violation
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WHO HAS UNLAWFUL
PRESENCE? HOW MUCH?
• Peggy, now age 16, entered the U.S. without papers 4 years ago. Is unlawful presence a problem for her case if she leaves the U.S. to go to a Consular appointment abroad?
• Norberto, from Columbia, entered the U.S. without inspection on June 6, 2007 and then applied for asylum on November 9, 2007. Will he be subject to an unlawful presence bar if he leaves the U.S.?
WHO HAS UNLAWFUL
PRESENCE? HOW MUCH?
• Marco entered the U.S. in October 2011
on a tourist visa and was authorized to
stay for six months. He has been
working since January 2012. Marco
plans to marry his U.S. citizen fiancee
in June and then leave in August for a
consular interview. Will unlawful
presence affect his application for
residency?
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THREE-YEAR BAR AND
REMOVAL PROCEEDINGS
• Nilda entered the U.S. without inspection on
December 6, 2009, and was arrested and
placed in removal proceedings in May 2010.
• On July 10, the judge granted Nilda 60 days
to depart the U.S. voluntarily, and she
complied with this order. Nilda is now
applying for an immigrant visa at the U.S.
Consulate in Nicaragua. Is Nilda
inadmissible under 212(a)(9)(B)?
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AFM HIGHLIGHTS:
“DAY AFTER” RULE
Unlawful presence beings to accrue the
DAY AFTER:
*I-94 expires
*finding of status violation
*turning 18
*parole expires
*adjustment of status denied
*voluntary departure expires
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AFM HIGHLIGHTS:
MULTIPLE GROUNDS OF INADMISSIBILITY MAY APPLY AT THE SAME TIME
Margot entered the U.S. without inspection in
1999. In 2006, she was placed in removal
proceedings and ordered deported by an
immigration judge. After her deportation,
Margot return to the U.S. without inspection.
How many inadmissibility grounds apply here?
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AFM HIGHLIGHTS
• Affirms that 245i does not overcome
inadmissibility under 212(a)(9)(B) or (C)
• Unlawful presence bar exceptions
under 212(a)(9)(B) DO NOT apply to
(a)(9)(C)
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INADMISSIBILITY RESCUE
PLAN?
Ginelda entered the U.S. without inspection in February 2012 and fell in love with USC Mike in March. They just got married and Mike wants to apply for Ginelda’s residency as soon as possible.
Do you have any advice for them?
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UNLAWFUL PRESENCE BARS: CAN
YOU SERVE TIME IN U.S.?
Greta came to the U.S. with a tourist visa and
overstayed her authorized visit by 8 months
before filing for adjustment of status in March
2012. She left the U.S. on advance parole in
April, and then applied for an unlawful
presence waiver upon her return.
Does Greta she need a waiver?
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UNLAWFUL PRESENCE WAIVER
INA § 212(a)(9)(B)(v)
• General Waiver Available where IJ or
CIS determines that refusing admission
to alien will result in extreme hardship
to USC or LPR spouse or parent; no
waiver based on hardship to child
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212(a)(9)(C)(i)(I):
• Unlawfully present
• More than one year in
aggregate
• On or after April 1, 1997
• Attempted EWI or EWI
• On or after April 1, 1998
212(a)(9)(C)(i)(II):
• Prior removal or deport
(at any time)
• Attempted EWI or EWI
• On or after April 1, 1997
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212(a)(9)(C) PERMANENT BAR
Norma is at CDJ waiting for her unlawful presence waiver to be decided. Tired of being apart from her spouse, she returns to the U.S. EWI to join him
Will this affect her case? Can she apply for waiver here?
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TRIGGERING THE
PERMANENT BAR
Marco from Costa Rica entered U.S. EWI in 2001 and
stayed for 4 months. He returned to Costa Rica, and
next entered U.S. in 2003, staying for 5 months.
• In 2005, he returned EWI to U.S., staying for 4
months.
• He last came to the U.S. in 2007 EWI and he hasn’t
left since.
• His PRD is now current and he is grandfathered
under 245(i). Is Marco inadmissible under
212(a)(9)(B)? What about under 212(a)(9)(C)?
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“AGGREGATE” UNLAWFUL
PRESENCE
INADMISSIBLE OR SAVED BY UNLAWFUL
PRESENCE EXCEPTIONS?
In 2005, five-year old Julissa came to
the U.S. from Mexico with her family,
entering with a tourist visa. She was
authorized to stay for 6 months. In
2008, she returned to Mexico with a
cousin, and they came back two
months later without inspection. Julissa,
now age 11, will soon be going to the
Consulate with her mother for her 2A
visa interview. Is that a good idea?
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RELIEF FROM ILLEGAL
REENTRY BAR
• For non-VAWA, can seek permission to
reapply for admission after 10 years
outside U.S.
• Apply with USCIS
• Balancing of the equities test
• For VAWA, if connection between
battery and removal/departure/
reentry/attempted reentry
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• ICE may reinstate prior removal order
against someone who was removed and
is now in U.S. illegally.
• DHS has viewed this provision as
applying to prior orders of deportation.
This interpretation upheld by Supreme
Court.
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WATCH OUT FOR REINSTATEMNT
OF REMOVAL: INA 241(a)(5)
Bin was removed for being inadmissible in
January 2005. She later returned to U.S.
without papers and married a USC.
Bin is subject to reinstatement of
removal. If she applies for adjustment
of status, she may be arrested by DHS
2
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HOW REINSTATEMENT OF
REMOVAL WORKS
ENTERING U.S. ILLEGALLY:
NOT JUST EWI?
• Cordova-Soto v. Holder, 10th Cir. Oct. 2011
Where Petitioner was waived through at the
border one month after her removal from the
U.S., she “reenter[ed] the United States
illegally” for purposes of reinstatement of
removal under INA §241(a)(5)
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ELIGIBLE TO IMMIGRATE?
Carlos entered the U.S. without inspection in 1988
and was arrested by INS in a factory raid in 1990. He
was given voluntary departure by the immigration
judge, but when he didn’t depart, he was sent a “bag
and baggage” order in 1992, taken into custody and
removed from the U.S. . He stayed outside the U.S.
until March 1997, when he returned without
inspection. Carlos has a current PRD from a petition
filed in 1995. Can Carlos adjust status under 245i?
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PRACTICE TIPS
• Carefully question clients re all prior
immigration enforcement encounters
• Try to determine facts through fingerprint
checks, FOIA requests to CIS, CBP,
EOIR, use of EOIR Court Information Line
(800 898 7180)
• Be aware that absence of FBI fingerprint
record doesn’t mean there is no expedite
removal order
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SO, HOW MANY PROBLEMS
CAN YOU HAVE AT ONCE?
Ana, a citizen of Mexico, entered the U.S. on a tourist
visa in 2005. In March 2007, Ana was arrested in a
factory raid and placed in removal proceedings. In
July 2007, the judge granted her 90 days voluntary
departure, but Ana didn’t leave until December 2008,
when she returned to Mexico to visit her sick mother.
After a month, Ana tried to enter the U.S. with a fake
border crossing card but she was detained at the border
and didn’t get in; she came back to the U.S. without
inspection 2 weeks later. Her 4th preference PRD
is current now and she wants to apply for adjustment of
status under 245(i). What should you tell her?
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Questions?
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415 Michigan Ave., NE
Suite 200
Washington, DC 20017
202-635-2556
Questions?
twitter.com/cliniclegal
facebook.com/cliniclegal
415 Michigan Ave., NE
Suite 200
Washington, DC 20017
202-635-2556