Unlawful Presence, Prior Deportations and So-Called “Permanent Bar”

The following article  is about the effects of prior deportations and unlawful presence on the possibility to immigrate to the U.S. Many Applicants come to our office to inquire about the consequences of prior deportations and periods of unlawful presence in the U.S.

There are two common scenarios.

The first scenario is usually similar to this: a foreign citizen had been previously deported from the U.S. and then entered or attempted to enter the U.S. illegally. Then the foreign citizen gets married to a U.S. citizen. The U.S. citizen comes to our office to inquiry about the immigration process for the spouse and to find out whether there are any issues associated with the alien spouse’s prior immigration violations.

Another common situation: a foreign citizen has been unlawfully present in the U.S. for more than 1 year, then departs the U.S. and enters or attempts to enter the U.S. illegally. Then that foreign citizen marries a U.S. citizen and tries to lawfully immigrate into the U.S.
Well, both of the above scenarios generally lead to a so-called “permanent bar” meaning that the foreign citizen is barred from the U.S. forever!

Unfortunately, the situations described above are very common. Families come to our office too late after a foreign citizen has already incurred a permanent bar. Had these foreign citizens sought immigration counsel’s assistance prior to entering/attempting to enter the U.S. illegally, they could have had a chance to immigrate to the U.S. lawfully in the first place without the fear of being permanently barred from the U.S.

The scenarios described above derive from Section 212(a)(9)(C)(i) of the Immigration and Nationality Act (INA) that provides that any alien who-
(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or
(II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law,
and who enters or attempts to reenter the United States without being admitted is inadmissible.
The U.S. immigration law provides for a variety of waivers of immigration violations. However, for the situations described above, the waiver is available only after 10 years have passed since the date of the alien’s last departure from the United States, with certain exceptions. The waiver is called “Permission to Reapply for Admission” and is submitted via a form I-212.

Even aliens who are married to U.S. citizens or who have U.S. citizen children have to abide by this waiver period. As a result, families are forced to be separated for 10 years before they can apply for a waiver!

Luckily, not everyone is subject to the permanent bar in the situations described above. Timing of the deportation and reentry is of great importance. There are certain exceptions for aliens who entered the U.S. prior to April 1, 1997, the effective date of IIRIRA.

Effect of Previous Deportation

The Administrative Appeals Office (AAO) concluded in its 12/29/2011 decision that the applicant was not subject to a permanent bar, where the applicant was removed and subsequently reentered the U.S. illegally before April 1, 1997 and later concurrently filed I-485, Application to Adjust Status, and I-212, Permission to Reapply for Admission into the U.S.

The AAO confirmed in its recent decision that the permanent bar INA section 212(a)(9)(C)(i)(II) applies only to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the U.S. unlawfully any time on or after April 1, 1997.

Therefore, individuals who reentered the U.S. before April 1, 1997 after a previous deportation are not subject to the permanent bar. Though very limited, this exception provides relief for certain aliens who have been present in the U.S. for many years. These individuals do not have to worry about the permanent bar but may be subject to other bars, for which they have to file waiver applications in order to obtain lawful status.

Effect of Unlawful Presence

Any alien who has been present in the U.S. unlawfully for an aggregate period of more than 1 year and enters or attempts to reenter the U.S. illegally is generally permanently inadmissible.
It is important to note that an individual’s unlawful presence periods are counted in the aggregate, meaning that one year of unlawful presence can accrue during multiple stays in the U.S.

Timing of unlawful presence is of the essence. Any period of unlawful presence accrued prior to April 1, 1997 does not count towards the period of time needed to trigger the permanent bar.
Therefore, an individual who has accrued more than 1 year of unlawful presence before April 1, 1997, leaves the U.S. and then reenters/attempts to reenter the U.S. without being admitted, is not subject to permanent bar.

In the situations described above, however, the permanent bar is not the only problem. One immigration violation can trigger several other bars including, but not limited to, 3- and 10-year bars for unlawful presence or 5-, 10 and 20-year deportation bars, etc.

The issues of unlawful presence and previous immigration violations are complex and require careful analysis by an immigration counsel. If you or your family members wish to immigrate to the U.S. but are concerned about previous immigration violations, contact our office for assistance.

Comments

[Jonathan D. Montag]

Thanks to Mr. Sapochnick for his comment on my comment. I should have been more specific. Carrillo de Palacios I dealt with unlawful presence and illegal reentry while Carrillo de Palacios II deals with prior deportation and illegal reentry. Specifically, Carrillo de Palacios II deals with an illegal reentry after April 1, 1997. An INS memo from 1997 and AAO unpublished opinion last month state that pre-April 1, 1997 entries do not impact the permanent bar. The BIA is obviously hostile to this view as seen in Carrillo de Palacios I. The 9th Circuit dodged the issue by issuing Carillo de Palacios II wherein it relied on the post-April 1, 1997,reentry after deportation and not addressing unlawful presence. All I meant by my comment was that the coast is not clear. The BIA may get a case with a pre-April 1, 1997, reentry and express again its dissatisfaction with the INS and AAO view. A 9th Circuit panel could then re-embrace its position in Carrillo de Palacios I with a case that addresses the issue head on without the alternative method of resolution - a post deportation reentry after April 1, 1997. All I meant to say is because of the BIA hostility and the earlier 9th Circuit concurrence with it (though not binding after Carrillo de Palacios II, but nonetheless contradictory to a rosy view of retroactivity and 212(a)(9)(C)(i)(I)), all is not settled in 212(a)(9)(C)jurisprudence. With the BIA and the 9th Circuit (at least one panel) gunning for the INS memo and the AAO, I just am not so optimistic about what the future will hold and practitioners should be aware of the potential for disaster. I apologize, Jacob, for not being clearer about my reservations.

[Jacob Sapochnick]

Mr. Montag,

Your comment was correct prior to December 1, 2011. The Ninth Circuit’s original decision as of June 21, 2011 indeed was very disturbing as the court held that the permanent bar applies to unlawful presence before April 1, 1997 rendering many individuals ineligible for adjustment of status and consular processing.

Fortunately, the case was reheard.

Please note that the Ninth Circuit in Carillo de Palacios v. Holder reissued its opinion on December 1, 2011, removing the language permitting the accrual of pre-IIRIRA unlawful presence under INA.

The court reheard the case and removed its previous language concerning accrual of unlawful presence prior April 1, 1997 for purposes of INA §212(a)(9)(C)(i)(I). Good news for the 9th Circuit! Please see Carrillo de Palacios v. Holder, 12/1/11) AILA Doc. No. 11062362.

Before voicing your critic, you should stay up to speed with recent changes in the Law!!

[Jonathan D. Montag]

Some of Mr. Sapochnick's advise is contradicted by a Ninth Circuit case, Carrillo de Palacios v. Holder:

http://caselaw.findlaw.com/us-9th-circuit/1571489.html?DCMP=NWL-pro_immigration

See a discussion of that case here:

http://www.montaglaw.com/2011/06/26/ina-%C2%A7-212a9c-permanent-bar-becomes-even-broader-and-harsher/

Before advising about the 212(a)(9)(C) bars, read Carrillo de Palacios v. Holder, particularly in the 9th Circuit.

Jonathan D. Montag, Esq.
Law Offices of Jonathan D. Montag
110 West C Street, Suite 1809
San Diego, CA 92101
Mail: P.O. Box 124801, San Diego, CA 92112
Tel: (619) 230-1420 Fax: (619) 230-1427
Email: jdmontag@montaglaw.com Web: www.montaglaw.com Read: www.montaglaw.com/blog
Immigration and Nationality Law Specialist, State Bar of California Board of Legal Specialization