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?

2

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

2

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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?

2

4

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)?

2

5

“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?

26

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.

2

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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?

33

Questions?

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415 Michigan Ave., NE

Suite 200

Washington, DC 20017

202-635-2556

national@cliniclegal.org

Text

Title

Questions?

twitter.com/cliniclegal

facebook.com/cliniclegal

415 Michigan Ave., NE

Suite 200

Washington, DC 20017

202-635-2556

national@cliniclegal.org