By Attorney Farhad Sethna, © 2015
A frequent set of questions that I encounter in my practice is “I was in deportation proceedings and I was ordered removed from the United States, but I never left. Can I now get a “green card” because I married a US citizen?” Or “My father and mother became US citizens and they would like to sponsor me but I entered illegally”. Another common question I hear is “I was caught at the border and they sent me back to Mexico. I reentered the USA the next day. Can I get a green card?”
To compound the difficulties posed by these questions, the applicant may also be seeking an I-601A waiver (more on this waiver elsewhere on this blog). That I-601A waiver was a very generous grant by the Obama administration in order to process waiver applications for spouses and minor children of US citizens, and has now also been extended to other categories of relatives of U.S. Citizens as well as Permanent Residents.
To address the types of questions that I paraphrased above, let us examine INA (Immigration and Nationality Act) §212 (a)(9), [the symbol § means “section”, §§ means “sub-section”] which specifically addresses these tough illegal-presence, reentry and final order of deportation issues.
Section 212(a)(9) is divided into three main subcategories.
§§ (A) deals with aliens who were previously removed from the United States. This means any alien who was removed under expedited removal (INA §235 (b)(1)) or removal proceedings (INA §240).
§§ (B) deals with aliens unlawfully present in the United States. These would include aliens who were present for more than 180 days but less than one year (subject to the three-year bar) or aliens unlawfully present in the United States for one year or more (subject to the ten-year bar).
§§ (C) deals with the third and perhaps most difficult to understand category – aliens unlawfully present after previous immigration violations. This means, an alien who has been ordered removed or has been removed and then reenters the USA.
There are certain exceptions and waivers available to certain types of applicants under each of these sections. The following explanation will explore these issues in greater detail.
§§ (A) Certain aliens previously removed
Any alien who has already been ordered removed under expedited removal [INA § 235(b)(1)]or after removal proceedings at an immigration court [INA § 240] is not allowed to reenter the United States for five years after the date of such removal. However, these five years is extended to twenty years in the case of a second or subsequent removal, or if the alien had previously been convicted of an aggravated felony in the United States.
Congress made it even harder on this category of alien by adding that any alien who had been removed under an immigration court proceeding or any other provision of law, or who left the United States while under an order of removal would be inadmissible for ten years. That ten year period was extended to twenty years as above, in the case of second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony.
However, Congress was generous in providing an exception to both these classes of inadmissible aliens if the Attorney General consented to the alien’s applying for readmission. In other words, if the alien applied for a waiver and the Attorney General (now the Secretary of the US Department of Homeland Security) approved the waiver, the alien could reenter irrespective of the five, ten, or twenty year bars. Note there is no requirement of extreme hardship and no requirement that the applicant have qualifying US citizen or LPR relatives.
§§ (B) Aliens unlawfully present
Any alien who has been unlawfully present in the United States (but not ordered removed) and who voluntarily departed the United States within a certain amount of time is ineligible to be readmitted for a certain amount of time – either a three-year bar or a ten-year bar.
For aliens who have been unlawfully present in the USA for more than 180 days but less than one year, that bar extends to three years. For those who have been unlawfully present in the United States for one year or more, such aliens are ineligible to reenter for upto ten years. However, that bar may be waived by the Secretary of the Department of Homeland Security.
There are certain exceptions to this bar. Those exceptions include minors, asylum applicants, beneficiaries under the family unity provisions of § 301 of the Immigration Act of 1990, battered women and children, and victims of severe trafficking in persons.
The unlawful presence may also be tolled (put on pause) in the case of an alien who has been lawfully admitted to the United States, and subsequently filed a genuine application for change or extension of status, and has not been employed in the USA during the time that the application is pending, limited to a period of 120 days.
Finally, the Secretary of Homeland Security has the discretion to waive the unlawful presence bars in two limited instances: if the intending immigrant is the spouse, son, or daughter of a US citizen; or in the case of a spouse, son, or daughter of an alien who is a lawful permanent resident. This waiver may be granted if the refusal of the alien’s reentry would result in extreme hardship to the US citizen or lawful permanent resident spouse or parent of such an alien.
§§ (C) Aliens unlawfully present AFTER previous immigration violations
This may perhaps be the trickiest section of the three clauses under INA § 212 (a) (9).
Under this provision, any alien who has been unlawfully present in the United States for more than one year, or who has been ordered removed under expedited removal [INA § 235(b)(1)], or by an immigration judge [INA § 240] in removal proceedings, or any other provision of law, who enters or attempts to reenter the United States without being admitted is inadmissible.
This means, that any alien who has been (1) unlawfully present in the United States (2) for more than one year (which results in the ten year bar, subparagraph (B) above), or has already been ordered removed, is inadmissible.
There is one exception. An alien will not be barred from reentering if the Secretary of the Department of Homeland Security consents to the alien reapplying for admission as long as the alien is seeking admission more than ten years after the date of his or her last departure from the United States.
At first glance, a reader might ask that how does this section differ from subsection (B) above? The answer is that under subsection (B), the alien has not reentered the United States after a previous immigration violation. That is why the three year or ten year bar may be waived by a showing of extreme hardship. However, under this subsection (C), the alien is unlawfully present in the United States after previous immigration violations. This means that the alien has already received the final order of removal and has either been unlawfully present in the United States for an aggregated period of one year or more than one year (which means, a total of all periods of unlawful presence at any time is greater than one year), or has entered or attempted to reenter the United States. The key difference between subsection (B) above and this subsection (C) is that the alien under subsection (B) does not have a prior order of removal while the alien in subsection (C) does.
There is also one more exception to the ten year bar under subsection (C): an alien who is a victim of domestic violence may qualify for a waiver if the alien’s being battered or subject to extreme cruelty is related to the alien’s removal, departure from the United States, and subsequent reentry or attempted reentry into the United States (for example – the alien reentered the USA to see protection from a battering spouse who had followed the alien overseas).
Therefore, in analyzing a case one has to verify the existence of several key issues including:
2. If there was not, did the alien depart the United States while proceedings were pending;
3. Did the alien attempt to return to the United States without first seeking a waiver; and
4. The aggregate time in unlawful presence (time in valid status does not count against the alien) that the alien has spent in the United States on ALL visits to the USA.
Let’s say an alien enters the United States. At the time of entry, the alien is apprehended at the southern border and is actually issued an order of expedited removal under INA §235 (b)(1). The alien is then removed back to Mexico.
On a subsequent day, the same alien attempts to reenter the United States, this time is successful and returns to the USA.
The alien spends a number of years in the USA. The alien subsequently marries a US citizen. The question then arises, can the alien obtain residency through the US citizen spouse in any way?
Let’s analyze this problem in light of the above analysis. First, the alien was ordered expedited removed. Therefore, he or she has received a final order of removal.
Second, the alien then reentered the United States.
Third, the alien has accrued more than one year of unlawful presence in the USA.
Fourth, the alien did not seek any kind of waiver of the barred reentry prior to reentering the United States.
Given the above facts and the application of the analysis therefore, the answer would unfortunately for the alien be “no”. Why is this?
Recall that subsection (B) above related only to aliens unlawfully present in the United States without a prior final order of removal. This alien clearly had a final order of removal under INA §235 (B) (1). Therefore, the alien does not fall into category (B) above. The alien reentered the USA unlawfully AFTER being removed from the USA.
Therefore the alien falls instead into category (C), above. He or she has been unlawfully present in the United States for more than one year, after a previous immigration violation. He or she has also been ordered removed under INA §235 (b)(1).
Finally, he or she has not departed the United States and is now seeking admission more than ten years after the date of last departure. In conjunction with that reentry, the alien also must have sought and have been granted a waiver by the Secretary of Homeland Security.
Unless the alien’s unlawful presence and subsequent reentry were related to his or her status as a VAWA self-petitioner (battered spouse or child), the alien falls under INA §212 (a)(9)(C), and cannot reenter the United States.
As you can see from the foregoing analysis, not all removable aliens or those with unlawful presence in the United States are treated equally under the Immigration and Nationality Act. Therefore, it is very important to analyze each case based on its own particular fact pattern in light of the various sections of the INA that are applicable and subsequently, the waivers (or lack of waivers) that may be available in each particular case.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.