Hi oluollyj,
1) Is an application for permission to re-apply for admission into the
United States after Deportation or removal required when the exclusion
occured in excess of 10 years?
Yes, a person does need a consent to reapply for entry into the US
after 10 years has passed since deportation.
INA: Sec. 212. [8 U.S.C. 1182] (a)(9)(C)(ii)
INA: ACT 212 - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS
AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY
Sec. 212. [8 U.S.C. 1182]
(a) Classes of Aliens Ineligible for Visas or Admission.-Except as
otherwise provided in this Act, aliens who are inadmissible under the
following paragraphs are ineligible to receive visas and ineligible to
be admitted to the United States:
(9) 12/ ALIENS PREVISOUSLY Removed.-
(C) Aliens unlawfully present after previous immigration violations.-
(i) In general.-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.
(ii) EXCEPTION.-Clause (i) shall not apply to an alien seeking
admission more than 10 years after the date of the alien's last
departure from the United States if, prior to the alien's
reembarkation at a place outside the United States or attempt to be
readmitted from a foreign contiguous territory, the Attorney General
has consented to the alien's reapplying for admission...."
http://uscis.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-20/slb-2112?f=templates&fn=document-frame.htm
2) If required, is the applicant now barred from making such
application in as much as he did not apply from outside the United
States?
The Date of Deportation begins the moment the person *leaves* the US.
After 10 years from that date, he must seek permission (Form I-212) to
reapply for entry into the US. Your question is a bit confusing
because in Question # 1 you stated "after Deportation" but Question #
2 implies that he never departed the US, in which case the 10 years
haven't begun yet (in other words, the 10 years have to be spent
outside the US, not inside). If you mean that he did spend 10 years
outside of the US but subsequently reentered the US illegally, he is
ineligible to apply for consent (see [g] below).
Following is a good link for you to read through, I've copied and
pasted a few relevant sections but please click on the link for full
details.
USCIS Chapter 43 Consent to Reapply After Deportation or Removal.
43.1 General.
(a) Background. "Under section 212(a)(9) of the Act, an alien who
falls with certain classes of aliens may be barred from applying for
admission to the U.S. unless he or she first obtains consent from the
Attorney General to do so..."
(1) "Under section 212(a)(9)(A) of the Act, an alien may not return to
the U.S., for any reason, for a specified period of time without the
express consent of USCIS (under section 212(a)(9)(A)(iii) of the Act)
if such alien:
Was removed from the U.S. as a deportable alien;
Such person can only overcome this ground of inadmissibility under one
of two conditions:
? More than 10 years have passed since his or last departure from the
U.S. AND he or she has applied for and been granted (as a matter of
discretion) by USCIS) consent to reapply under section
212(a)(9)(C)(ii) of the Act; or
? He or she is granted (in the discretion of USCIS) a waiver of
inadmissibility under section 212(a)(9)(C)(ii) of the Act..."
(c) Timing of Request and Adjudication. "Consent to reapply may only
be considered in connection with future entries into the U.S. That is,
it may only be processed where the applicant is presently in the U.S.
and under an order of removal which will take effect upon his or her
departure from the country, or where the alien is outside the country
and seeking to return, whether abroad or at a port of entry.
Note: While the statute requires that consent must be obtained before
the ?date of the alien?s reembarkation at a place outside the U.S. or
attempt to be readmitted from contiguous territory,? precedent
decisions and long-established practice have allowed for nunc pro tunc
(or ?now for then?) approval of the application in meritorious cases.
See Matter of L?, 1 I&N Dec. 1 (BIA, 1940); Matter of S? N?, 6 I&N
Dec. 73 (BIA 1954, AG 1954); and Matter of Vrettakos, 14 I&N Dec. 593
(BIA, 1973 and 1974). If the application is granted nunc pro tunc, the
approval is retroactive to the date on which the alien reembarked for
the U.S. or sought admission from Canada or Mexico.
(d) Advance Consent to Reapply. There is a provision in 8 CFR 212.2(j)
for an alien in the U.S. to apply for consent to reapply in advance
where departure from the U.S. will execute an outstanding warrant of
removal. Approval of such an application would be conditioned upon the
alien's departure from the U.S. Approval of consent to reapply is not
conditioned or limited in any other way. In most cases, an application
will be filed when the applicant is under an outstanding order of
deportation and ineligible for adjustment of status, but because of
the equity involved (such as a U.S. citizen spouse or an immediately
available visa number), the alien will be allowed to remain in the
U.S. while processing the immigration visa application abroad. In most
cases, it is difficult to determine how long the visa processing will
take, or when the alien will be called for an interview before the
American Consular Officer. Frequently the I-212 will be filed
concurrently with an I-130 filed by a U. S. citizen spouse. In those
cases where the consent to reapply is granted in advance, endorse the
Form I-212 to show that the grant is "effective upon execution of
outstanding order of deportation" and forward it to the American
Consular Office where the immigrant visa is being processed."
(g) "Relationship to Reinstatement of Removal under Section 241(a)(5)
of the Act. An alien who has reentered the U.S. illegally after having
been removed (which includes ?deported? or ?excluded and deported?),
or after having departed voluntarily while under an order of removal
(a ?self-deport?) is ineligible for any relief under the Immigration
and Nationality Act. Such relief includes consent to reapply for
admission to the U.S. after deportation or removal under section
212(a)(9)(A) of the Act."
http://uscis.gov/lpbin/lpext.dll/inserts/afm_redacted/afm-95-redacted-478-1/afm-95-redacted-9783?f=templates&fn=document-frame.htm
Form I-212, Application for Permission to Reapply for Admission Into
the United States After Deportation or Removal
http://uscis.gov/graphics/formsfee/forms/files/i-212.pdf
I hope I've been able to clear this matter up for you. If you have any
questions or if I've misunderstood your questions, please post a
clarification request and wait for me to respond before closing/rating
my answer.
Thank you,
hummer
Search Strategy: I searched the USCIS website and searched Google
using the terms: "10 year bar" uscis reapply after deportation |
Clarification of Answer by
hummer-ga
on
20 Mar 2006 17:23 PST
Hi oluollyj,
That's ok, I knew you weren't unhappy with my answer. I just wish you
had put in your original question everything that you've told me in
your clarifications. It would have saved alot of guess work!
The thing is, the law changed on April 1, 1997 and in this case, the
deportation happened before that date but the re-entry happened after.
The old law is more lenient and allows for a hearing to determine if
the alien can stay. Had the re-entry happened prior to 1997, and
given the marriage to a US citizen, and assuming good behavior, the
chances are very good for being issued LPR status. But since the
re-entry falls under the new regime, the alien no longer has the right
to a hearing and has no opportunity to argue his case. So I'm sorry,
I'm afraid I've not been able to find any good news, but remember that
although internet research is generally reliable (if done carefully),
it cannot take the place of advice from an attorney.
"The summary reinstatement process offers virtually no procedural
protections. The regulation grants aliens to whom it applies nothing
more than a chance to make a statement opposing reinstatement to an
immigration officer (not to a judge). It guarantees the alien no
notice before reinstatement of a prior deportation order, affords him
no real opportunity to contest the facts underlying the reinstatement,
and contemplates no presentation of evidence."
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=case&no=032146
Supreme Court to decide reinstatement of removal case
Immigrants' Rights Update, Vol. 19, Issue 8, December 22, 2005
http://www.nilc.org/immlawpolicy/removpsds/removpsds148.htm
C. No Impermissible Retroactive Effect of INA § 241(a)(5).
The reinstatement statute differed from the previous statute in at
least three ways.
First, under the old regime only illegal reentrants who had previously
been deported on certain specified grounds (e.g., conviction for an
aggravated felony) were subject to having their original deportation
orders reinstated. Under section 241(a)(5), however, all illegal
reentrants now face the prospect of such reinstatement. Second, under
the earlier system an alien had a right to a hearing, presided over by
an immigration judge, before reinstatement of the prior deportation
order became a fait accompli. Under the regulations implementing
section 241(a)(5), however, there is no longer a right to such a
hearing (or to any hearing, for that matter). Third, preexisting law
allowed an illegal reentrant to attempt to fend off execution of a
reinstated deportation order by petitioning for discretionary relief
in the form of an adjustment of his status to that of an alien
lawfully admitted for permanent residence. Conversely, section
241(a)(5) pretermits an illegal reentrant's ability to apply for any
relief under the INA."
http://www.kscourts.org/ca10/cases/2005/01/03-9610.htm
No. 04-1376
In the Supreme Court of the United State
Question:
Whether § 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. §
1231(a)(5), which eliminates the right to obtain relief from removal
for noncitizens who have illegally reentered the United States after
having been deported, applies to individuals who reentered the United
States before April 1, 1997, the effective date of that provision.
http://www.appellate.net/briefs/FernandezVargas_petitioners_brief.pdf
TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part IV > § 1229b
§ 1229b. Cancellation of removal; adjustment of status
http://www4.law.cornell.edu/uscode/html/uscode08/usc_sec_08_00001229---b000-.html
United State Code
TITLE 8 - ALIENS AND NATIONALITY
http://www.washingtonwatchdog.org/documents/usc/ttl8/ch12/index.html
I'm sorry that I don't have better news.
hummer
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