IMMIGRATION LAW MONTHLY

Immigration Law Monthly

January 2008

Written by Henry J. Chang

What is the definition of "ordered removed" for the purposes of INA §212(a)(9)(C)? If someone leaves the United States voluntarily when no order of deportation is outstanding does this mean that he or she is still "ordered removed"?

If you review the wording of INA §212(a)(9)(C), it states that any alien who has been "ordered removed" under INA §235(b)(1), INA §240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible. As similar reference to the phrase "ordered removed" also appears in INA §212(a)(9)(A)(ii). INA §235(b)(1) refers to the removal of arriving aliens (formerly known as exclusion). INA §240 applies to the removal of aliens present in the United States (formerly known as deportation).

Many United States Customs & Border Protection ("USCBP") officers will take the position that, for the purposes of INA §212(a)(9)(C) and INA §212(a)(9)(A)(ii), the key issue is whether there is a removal order in place. If this position is accepted, even if the alien departs from the United States after the commencement of removal proceedings but before a removal order is issued, it is still possible for him or her to be considered "ordered removed" if an immigration judge later issues an in absentia removal order against the alien.

As stated above, an immigration judge may still issue an in absentia removal order following the alien's departure, if removal proceedings commenced before that departure. This is because an alien may not simply leave after proceedings have commenced. Such an alien must obtain voluntary departure under INA 240B before leaving the United States in order to avoid the consequences of removal. An alien who is subjected to an in absentia removal order after having departed from the United States will still be considered "ordered removed."

It is arguable that the term "ordered removed" should really only refer to aliens who are formally removed at the government's expense. This is supported by the language of INA §212(a)(9)(A)(ii), which states that an alien who has been ordered removed under section 240 or any other provision of law, or departed the United States while an order of removal was outstanding is inadmissible. If persons subject to an order or removal were considered "ordered removed," there would be no need to also mention the inadmissibility of someone who left on their own while an order of removal was outstanding. However, to be cautious, I think you should follow the stricter interpretation that the mere existence of a removal order will render the alien "ordered removed."

I came to the United States from China in 2000 on an F-1 student visa. In 2002, I worked under Optional Practical Training. In 2003, I obtained an H-1B. In 2005, I went back to school in F-1 status again; I will finish school in 2010. I will be receiving my Canadian immigrant visa within the next 6 months. Will Canadian permanent residence help me get a visa back to the United States after I have made my entry into Canada using the immigrant visa? I am concerned that my change of status twice will impact me.

I assume that you are asking whether you will be permitted to return to the United States after making your entry into Canada with the Canadian immigrant visa. Your having Canadian permanent residence will not make it any easier since only Canadian citizens are visa-exempt, not Canadian permanent residents. However, if you initially obtained a visa to enter the United States, even if it was an F-1 visa and not an H-1B visa, you may be able to utilize automatic visa revalidation.

According to 22 CFR §41.112(d), an alien who travels to contiguous territory (i.e. Canada or Mexico) for 30 days or less may, subject to specific requirements, reenter using an expired visa, even if it was in a different category. However, if your previous visa has already been cancelled, it is not eligible for automatic revalidation.

So, subject to your compliance with 22 CFR §41.112(d), you may enter Canada using your Canadian immigrant visa and then return to the United States to resume your H-1b status, since your expired F-1 visa will be revalidated (for that one entry only) as if it were a valid H-1B visa.

You can also apply for a new H-1B visa at United States Consulate or Embassy in Canada. The fact that you will be a permanent resident of Canada will make it somewhat easier to obtain a new visa. This is especially true because your current classification is H-1B, which does not require that you establish strong ties to your home country. Of course, if you apply for an H-1B visa, you will no longer be eligible for automatic revalidation under 22 CFR §41.112(d).