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Exclusion of Previously Removed or Unlawfully Present Aliens

Written by Henry J. Chang

Aliens Previously Removed or Unlawfully Present in the United States [Effective April 1, 1997.]

Certain Aliens Previously Removed

The new INA §212(a)(9)(A) provides that an alien who has been ordered removed under the new INA §235(b)(1) [summary removal upon inspection of applicants for admission] or at the end of removal proceedings under the new INA §240 initiated upon the alien's arrival in the United States [an exclusion proceeding] and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. The previous bar for exclusion was one year unless the person was convicted of an aggravated felony, in which case it was 20 years.

Further, any other alien who has been ordered removed under INA §240 or any other provision of law [a deportation proceeding] or departed from the United States while an order of removal was outstanding and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. The previous bar for deportation was five years unless the person was convicted of an aggravated felony in which case it was 20 years.

The term "aggravated felony" is defined in INA §101(a)(43). Among other things, the term includes offenses such as murder, rape, sexual abuse of a minor, money laundering, drug-trafficking, and the illicit trafficking in firearms or destructive devices. The new law amends the definition to include certain sexual offenses and expands the crimes defined as aggravated felonies by lowering the sentence and monetary amount thresholds contained in the definition.

An exception to this ground exists if, prior to the alien's embarkation, the Attorney General has consented to the alien's reapplication for admission.

Aliens Unlawfully Present

The new INA §212(a)(9)(B)(i)(I) provides that any alien who has been unlawfully present in the United States (presence in the United States after the expiration of lawful status or presence in the United States without being admitted or paroled) for a period of more than 180 days but less than 1 year and voluntarily departed the United States (whether or not pursuant to section 244(e) prior to the commencement of proceedings, is excludable for a period of 3 years. The new INA §212(a)(9)(B)(i)(II) provides that any alien who has been unlawfully present in the United States (presence in the United States after the expiration of lawful status or presence in the United States without being admitted or paroled) for 12 months or more is excludable for 10 years.

The calculation of this period of time shall be tolled during the pendency of the application, to a maximum of 120 days, where an alien:

  1. has been lawfully admitted or paroled into the United States;

  2. has filed a nonfrivolous application for a change or extension of status before the date of expiration of stay authorized by the Attorney General; and

  3. has not been employed without authorization before or during the pendency of the application;

Limited exceptions from this ground of exclusion exist for minors, asylees, family unity beneficiaries and battered women and children.

An immigrant waiver is available under INA §212(a)(9)(B)(v) for an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.

Interim guidance on unlawful presence first appeared in an INS memo dated March 31, 1997. The memo interpreted time “unlawfully present” as including any time spent in the United States by aliens after they violated the terms and conditions of any form of nonimmigrant status, because time spent in violation of status is not authorized. In addition, it stated that the tolling of unlawful presence while an application for adjustment of status was pending could not exceed 120 days. Finally, the memo stated that periods of unlawful presence prior to April 1, 1997 could count towards the ten year bar contained in INA §212(a)(9)(C), even though only periods of unlawful presence after April 1, 1997 would apply to INA §212(a)(9)(B)(i)(I) and INA §212(a)(9)(B)(i)(II). A copy of March 31, 1997 memo appears here.

The INS provided additional guidance on June 17, 1997. In its June 17, 1997 memo, the INS changed its mind and stated that only periods of unlawful presence after April 1, 1997 would count toward the bar contained in INA §212(a)(9)(C). In addition, it stated that an applicant whose adjustment of status was pending would not be considered unlawfully present. A copy of the June 17, 1997 memo appears here.

Then, in a memo dated September 19, 1997, the INS changed its interpretation of "unlawful presence". Under the modified interpretation, unlawful presence with respect to a nonimmigrant includes only periods of stay in the United States beyond the date noted on Form I-94, Arrival/Departure Record. Unlawful presence does not begin to run from the date of a status violation (including unauthorized employment). Unlawful presence for a nonimmigrant may begin to accrue before the expiration date noted on the I-94, however, in two circumstances: (1) when an immigration judge makes a determination of a status violation in exclusion, deportation or removal proceedings, or (2) when the Service makes such a determination during the course of adjudicating a benefit application. In cases where the immigration judge finds there was a status violation, unlawful presence begins to accrue as of the date of the order of the immigration judge, whether or not the decision is appealed. (If the judge grants voluntary departure, however, the voluntary departure period is not considered unlawful presence). A copy of the September 19, 1997 memo appears here.

The Department of State subsequently issued a cable which was consistent with the INS interpretation. A copy of the Department of State's December 17, 1997 cable (State 235245) advising on unlawful presence appears here. The Department of State issued a revised cable on April 4, 1998 (State 060539), a copy of which is available here.

A recent Department of State cable has also clarified that Canadian citizens and Commonwealth citizens residing in Canada who enter the United States as visitors are to be treated as duration of status cases. This is because such aliens are not issued I-94's when then are admitted as visitors. The DOS cable is discussed in 76 Interpreter Releases 1552 (October 25, 1999).

In a memorandum dated March 3, 2000, the INS has recently acknowledged the fact that extensions of stay and changes of status exceed the 120 day tolling period mentioned in the INA. It has now designated the entire period during which a timely filed, nonfrivolous application has been pending with the Service as a "period of stay authorized by the Attorney General," provided the alien has not engaged in any unauthorized employment. This period of stay authorized by the Attorney General covers the 120-day tolling period described in INA 212(a)(9)(B)(iv) and continues until the date the Service issues a decision. The Department of State has issued similar guidance in STATE 102274.

An immigrant waiver is available in the case of the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

Aliens Unlawfully Present After Previous Immigration Violations

The new INA §212(a)(9)(C) provides that aliens who were unlawfully present in the United States for an aggregate period of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted, are excludable. A waiver is permitted if the alien is seeking admission more than 10 years after the alien's departure from the United States and if, prior to the alien's embarkation, the Attorney General has consented to the alien's reapplying for admission.


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