Striving to decipher INA § 212(a)(9).

Monday, January 16th, 2012
By: Jonathan MontagJ.D.

An amazing thing about immigration law is that hot topics can be issues that have been festering for years and one would imagine would have been resolved by now. For example, the Supreme Court recently decided a case, Judulang v. Holder, a very important decision about 212(c), a relief statute that disappeared fifteen years ago and involves principally the right to seek forgiveness for  illegal conduct or convictions that took place before it disappeared. The issues in the case have been undergoing litigation for decades with rulings by past notables such as Justice Robert Jackson (when he was the Attorney General), who died in 1954. Similarly, though mildly less dramatically, the Ninth Circuit Court of Appeals, and the Board of Immigration Appeals, as well as the USCIS’s Administrative Appeals Office (AAO) are struggling with the impact of the 3 and 10 year bars as well as the permanent bar on people who departed and returned to the United States without admission before April 1, 1997, nearly fifteen years ago, in a statute that became law more than fifteen years ago. One might expect that fifteen years after a law is passed, its contours would be defined. At least in immigration law, such is not the case.

I last wrote about recent developments in this issue in June 2011 addressing a Ninth Circuit case, Carrillo de Palacios v. Holder (Carrillo de Palacios I). Since then, the Ninth Circuit has superseded the decision with a new one, Carrillo de Palacios II.

Let me provide some background. In 1996 Congress passed and President Clinton signed IIRIRA, a major, Draconian overhaul of the immigration laws. It introduced, among a host of harsh measures, INA §§ 212(a)(9)(B) and 212(a)(9)(c).  The first one, 212(a)(9)(B)(I), mandates that if a person is unlawfully present in the United States for more than 180 days or for a year and departs the United States, that person cannot return for 3 years or 10 years. There are exceptions (212(a)(9)(B)(iii)) and a waiver is available.

The second one, 212(a)(9)(c), states two different things. First, 212(a)(9)(C)(i)(I) states that if a person has been unlawfully present in the United States for an aggregate period of more than a year  and departs and then comes back or attempts to come back without being admitted, the person cannot come back for 10 years.  Additionally, 212(a)(9)(C)(i)(II) states that if a person who has been removed from the United States and comes back or attempts to come back without being admitted, that person is barred from coming back for 10 years. There is no waiver of this 10 year bar. To come back, the person must get special permission beyond “simply” having a visa be available and not otherwise being inadmissible to the United States. Because of the lack of a waiver and the long period until rehabilitation, it is called the “permanent bar.”

Because Congress was explicit about the effective date of 212(a)(9)(B), it is accepted, as the Board of Immigration Appeals held in Matter of Rodarte-Roman that 212(a)(9)(B) applies to unlawful presence accruing only after its effective date, April 1, 1997.

The application of  212(a)(9)(c) is much more problematic. Questions revolve around whether unlawful presence accrued before April 1, 1997, or removals before April 1, 1997, followed by entry or attempted entry without admission after April 1, 1997, count as triggers to these bars. It is safe to say that practitioners’s initial assumptions were that only unlawful presence and removals after April 1, 1997, would cause problems. Practitioners have been rudely awakened. The retroactivity rules for 212(a)(9)(B) do not apply to 212(a)(9)(c). Carrillo de Palacios I and II illustrate the rude awakening.

Here are the facts in the case of Ms. Maria Matilde Carrillo de Palacios:

1. She was unlawfully present in the United States from 1981 to 1983 (and probably until she was deported in 1984).

1. She was deported in 1984.

2. She came back to the United States without being admitted twice, in 1992 and September 1997. She apparently spent very little time in the United States in 1992, effectively being outside the United States from 1992 to 1997. From 1997 to at least December 2009, when a stay of removal automatically issued when she filed her appeal was lifted, she was in the United States.

3. She applied to adjust status, presumably some time in 2003-2005. She was denied adjustment of status and placed in removal proceedings. An immigration judge granted adjustment of status on November 8, 2007, finding that any bars to adjustment of status were cured by another statute, 245(i).

4. The government appealed.

5. The Board of Immigration Appeals (BIA) reversed the immigration judge on June 3, 2009. The BIA held that 245(i) did not cure any of the grounds of inadmissibility at 212(a)(9)(C). It then determined that Mr. Carrillo de Palacios was inadmissible pursuant to INA § 212(a)(9)(C)(i)(I), having been unlawfully present in the United States for more than one year, departing, and then coming back without being admitted, and 212(a)(9)(C)(i)(II), having been deported and then coming back without being admitted. The BIA held that Inasmuch as she did not ask for special permission to come back, she does not fit under the exception to these two bars.

6. She petitioned for review on July 2, 2009 (Right under the 30 day wire. Why do people do that?)

In the Ninth Circuit’s June 2011 decision, the court addressed the bar at INA § 212(a)(9)(C)(i)(I) (a year of unlawful presence, departure, and return without being admitted) and concluded that Ms. Carrillo de Palacios was inadmissible under this provision. The Court wrote, “We agree with the BIA’s conclusion regarding § 1182(a)(9)(C)(i)(I) [INA § 212(a)(9)(C)(i)(I)]. We need not address the arguments regarding 8 U.S.C. § 1182(a)(9)(C)(i)(II) [INA § 212(a)(9)(C)(i)(II)], and we express no opinion regarding the BIA’s analysis of that provision.”

Addressing  212(a)(9)(C)(i)(I) (a year of unlawful presence, departure, and return without being admitted), Ms. Carrillo de Palacios argued that she was not subject to the 212(a)(9)(C)(i)(I) bar because she did not accrue her 180 days of unlawful presence after April 1, 1997, when many IIRIRA provisions took effect as she returned to the United States in September 1997 and other periods of unlawful presence followed by departure and entry without inspection occurred long before April 1, 1997.

The Ninth Circuit rejected this argument and concluded that she accrued unlawful presence from 1981 to 1983, and when she returned without permission in September 1997, after Apri1 1, 1997, she triggered the 212(a)(9)(C)(i)(I) bar. The Court then discussed the exception for people who apply for special permission to return after ten years and concluded that Ms. Carrillo de Palacios needed to apply for  this special permission from outside the United States (“prior to reembarkation”). The fact that she applied ten years after her departure was not enough – she needed to have waited ten years from 1992, her date of entry without permission after accruing a year of unlawful presence, triggering the 212(a)(9)(C)(i)(I) bar, and to have waited outside the United States before applying.

But that is not the end of the story. In fact, this is no longer the definitive story at all because on December 1, 2011, The Ninth Circuit withdrew this opinion and issued Carrillo de Palacios II.

It did this on its own initiative and it was not part of a rehearing of Carrillo de Palacios I. (A motion for rehearing is currently pending). While Carrillo de Palacios I was about 212(a)(9)(C)(i)(I) (accruing a year of unlawful presence, departing and then reentering or attempting to reenter without admission), Carrillo de Palacios II is about the sister-provision, 212(a)(9)(C)(i)(II) (having been removed from the United States and coming back or attempting to come back without being admitted). The Court wrote, “We agree with the BIA’s conclusion regarding § 1182(a)(9)(C)(i)(II). We need not address the arguments regarding § 1182(a)(9)(C)(i)(I), and we express no opinion regarding the BIA’s analysis of that provision.” 

In applying 212(a)(9)(C)(i)(II), the court concluded that Ms. Carrillo de Palacios was ordered deported in 1984. When she came back in September 1997, without first receiving special permission to do so, she triggered the bar. It reiterated its holding in Carrillo de Palacios I that to fit under the exception at 212(a)(9)(C)(ii), a ten-year wait and the grant of a waiver must be accomplished before returning to the United States.

So where does all this leave us?

First, regarding the 3 and 10 year bars – it is quite established that departing by September 28, 1997, (180 days after April 1, 1997, the effective date for 212(a)(9)(B)) after accruing unlawful presence, will not subject someone to those bars.

Regarding, 212(a)(9)(C)(i)(II), being deported at any time in the past and coming back after April 1, 1997, will subject a person to the permanent bar.

Now, what about 212(a)(9)(C)(i)(I), a person who accrued a year of unlawful presence before April 1, 1997, and entered or attempted entry without admission after April 1, 1997? Does the 212(a)(9)(C)(i)(I) bar apply?  According to Carrillo de Palacios I, it does. But this case has been superseded by Carrillo de Palacios II, which expresses no opinion about the issue. The BIA, in its unpublished Carrillo de Palacios decision, concluded that unlawful presence at any time and then reentry after April 1, 1997, creates a bar.

Are there other authorities to rely on? Another authority is a USCIS memo from May 6, 2009, a compilation of many years of memos on 212(a)(9)(B) and (C), which states:

Under 212(a)(9)(C)(i)(I) of the Act, the alien’s unlawful presence is counted in the aggregate, i.e. the total amount of unlawful presence is determined by counting together all periods of time during which an alien was unlawfully present in the United States on or after April 1, 1997. Therefore, if an alien accrues a total of more than one (1)  year or of unlawful presence time whether accrued in a single stay or multiple stays, departs the United States, and subsequently reenters or attempts to enter without admission, he or she is subject to the permanent bar of section 212(a)(9)(C)(i)(I) of the Act.

This memo, stating the unlawful presence must occur on or after April 1, 1997, is contrary to the unpublished BIA decision in Carrillo de Palacios and Carrillo de Palacios I. Granted, Carrillo de Palacios I is not the law for now and the BIA’s decision in Carrillo de Palacios is unpublished and thus not of much precedential value, but a memo is also not the law. Because of the BIA hostility and the earlier 9th Circuit concurrence with it, nothing is settled in this area of 212(a)(9)(c)(I)(i) jurisprudence. With the BIA and the 9th Circuit (at least one panel) gunning for the INS memo, aliens and their lawyers should be aware of the potential for disaster – unlawful presence accrued before April 1, 1997, followed by an entry or attempted entry without admission after April 1, 1997, could lead to a finding that the alien is permanently barred under INA § 212(a)(9)(C)(i)(I) and must wait ten years outside the United  States and then ask for special permission to return.

There is an AAO unpublished opinion from December 29, 2011 regarding 212(a)(9)(C)(i)(II), that indicates that reentry before April 1, 1997, after a prior removal does not subject a person to the 212(a)(9)(C)(i)(II) this bar. The person is, however subject to a bar based on 212(a)(9)(A), having been removed, for which there is a waiver. So this case sheds no light on 212(a)(9)(C)(i)(I) (reentry without admission after a year of unlawful presence) when the entry or attempted reentry without admission occurred after April 1, 1997, but the one year of unlawful presence was accrued before April 1, 1997.

The unpublished AAO decision itself deserves some further examination because of its own significance. The unpublished AAO decision is also a very hard one to rely on because the statutory right of Immigration and Customs Enforcement (ICE) to reinstate a removal order means that USCIS does not have to consider a pending adjustment application (under 245(i)) accompanied by a waiver of the 212(a)(9)(A) bar, but instead can have ICE reinstate the removal order. See, INA § 241(a)(5) and the Supreme Court decision in Fernandez-Vargas v. Gonzales. Thus a person or a person’s attorney, who relies on the unpublished AAO decision and files and adjustment application and a waiver application to waive a 212(a)(9)(A) bar, may suffer the result, not of the approval of the waiver and the granting of adjustment of status, but rather, reinstatement of the old removal order, a disappointing result indeed. It should be noted that the May 6, 2009, USCIS memorandum compiling all of its memoranda on these issues, dodged the apparent conflict between the availability of a waiver for a removal when there has been an entry without admission before April 1, 1997, and ICE’s power to reinstate old removal orders. This is certainly an area ripe for coordination and then clarification from USCIS and ICE.

Carrillo de Palacios II does seem to indicate that the reentry or attempted entry without admission that triggers the  212(a)(9)(C)(i)(II) bar must have occurred after April 1, 1997. The decision quotes approvingly of an INS memo from June 17, 1997, memo stating as such. The unpublished AAO opinion states this as well. Carrillo de Palacios I  said the same for the 212(a)(9)(C)(i)(I) bar. “Here, the legal ‘disability’ (inadmissibility) arises from the alien’s post-IIRIRA act of unlawfully entering the country, not the alien’s pre-IIRIRA accrual of unlawful presence. [ ] The alien’s prior unlawful presence is merely an ‘antecedent fact[ ]’ that limits the scope of § 1182(a)(9)(C)(i)(I)’s post-IIRIRA application.”

Fifteen years after IIRIRA and after scores of decisions and memoranda, there is still very much unclear about 212(a)(9), both substantively and procedurally. With the new policy regarding 212(a)(9)(B) waivers, ambiguity prevails in regard to 212(a)(9) (a), (b), and (c). Not bad for a fifteen year old statute. Perhaps in 60 years, a Supreme Court case will provide some clarification. Posted January 16, 2012.


 

Comments are closed.