At Long Last, Uscis Meets the Moment

• Publication year: 2022

At Long Last, USCIS Meets the Moment

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A Brief History of the Unlawful Presence Bars

Martin Robles-Avila ^*

Abstract: Providing an in-depth overview and analysis of the statutory schema implicating the three- and ten-year bars—as well as important and often overlooked legislative history—this article lends context to USCIS's nascent policy change to no longer require that applicants serve the three- and ten-year bars outside of the United States, a long-held position contradicted by statutory text and architecture.

Introduction

Among a plenitude of provisions marked by their cruelty ¹ and created as part of the watershed Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, the so-called three- and ten-year bars ² are uniquely pernicious; on the one hand, they cause family separation, and on the other, they encourage illegal immigration: better to remain in the United States illegally than risk departure and remain stuck outside, possibly forever. After they were signed into law by President Bill Clinton in 1996, Hillary Clinton campaigned for president in 2016 on a pledge to repeal them, tweeting that the "provisions tear families apart and should end." ³ The statutory bars classify noncitizens as being inadmissible for either three or ten years, depending on the length of unlawful presence. The United States Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO), its highest administrative appellate body, and USCIS field offices have consistently interpreted the provisions to require the entire duration of the bars be served outside the United States, ⁴ despite the absence of such a requirement in the statutory text. For an ever-burgeoning class otherwise qualified to obtain legal status—the largest percentage of whom, by virtue of their geographic proximity, are Mexican ⁵ noncitizens—this interpretation has created a sort of purgatory with no hope for absolution. When they seek permanent residence many years after returning to the United States subsequent to a departure triggering either variant of the bar, USCIS has traditionally deemed these penitent souls inadmissible, compelling them to apply for a hardship waiver. ⁶ And in the absence of waiver eligibility, ⁷ these star-crossed migrants are banished to a nearly inescapable limbo.

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In response to a class action challenging USCIS's restrictive (mis)interpretation of the bars filed by the Northwest Immigrant Rights Project, ⁸ USCIS issued guidance in its Policy Manual, stating that "[a]s long as the noncitizen again seeks admission more than 3 or 10 years after the relevant departure or removal, the noncitizen is not inadmissible under INA 212(a)(9)(B) based on the period of unlawful presence preceding the departure or removal because the statutory 3-year or 10-year period after that departure or removal has ended." ⁹ As a matter of statutory interpretation, the new policy better reflects the unambiguous text and context of the statute; however, by amending its policy through less enduring subregulatory guidance, USCIS leaves this nascent policy vulnerable to the vagaries of future nativist administrations. USCIS should therefore undertake the further protective maneuver of informal notice-and-comment rulemaking under the Administrative Procedure Act ¹⁰ to disadvantage future attempts to dismantle it.

They Say Bad Things Come in Threes

Delineating several grounds of inadmissibility ¹¹ for violations related to unlawful presence and previously removed noncitizens, 8 U.S.C. § 1182(a)(9) ¹² encompasses the three- and ten-year unlawful presence bars. The bars are designed to prevent unauthorized immigrants from securing legal status if they have entered the United States without inspection or remained after a period of authorized temporary stay. The focus of this article is on one of those violations, specifically pertaining to the notion of "unlawful presence" contained in subparagraph (B). In order to understand how that subparagraph has been interpreted by the AAO and most USCIS offices, we must explore all three provisions and their provenance.

8 U.S.C. § 1182(a)(9)'s constituent parts include:

(A) noncitizens previously ordered removed are inadmissible for 5, 10, or 20 years, depending upon the type and timing of the removal proceeding, unless prior permission to enter is obtained;
(B) noncitizens "unlawfully present" (present after entry without inspection, or after expiration of permission to be in the United States temporarily) are inadmissible for three or ten years, depending upon the length of unlawful presence, unless a waiver is granted; and
(C) noncitizens who entered without inspection after at least one year of unlawful presence or after having been ordered removed from the United States are permanently inadmissible, unless prior permission to enter is obtained after more than 10 years from the date of the last departure.

The question left unanswered by the statute is where those three or ten years must be spent, once inadmissibility has been triggered by a departure.

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The statute merely renders a noncitizen inadmissible if they "again seek[ ] admission within" the barred period; it is agnostic as to precisely what follows when a noncitizen subsequently returns to the United States in a nonimmigrant category, for example, with or without a nonimmigrant waiver, during that span. In the absence of a clear statutory mandate, the AAO simplistically decreed the noncitizen remain outside the United States for the entire period. ¹³ The AAO exacerbated matters by devising a fanciful tolling provision with no home in the text, discounting time spent in the United States from fulfilling the barred period, thus converting it into a permanent bar. ¹⁴ This ultra vires conception notwithstanding, the architecture and interplay of the three provisions render stark the ineluctable view that the unlawful presence bars need not be served outside the United States, the former policy now in its death throes. By updating its policy to reflect the statute as written, USCIS will benefit potentially thousands formerly precluded from applying for permanent residence by the inherent cruelty of this rule. ¹⁵

The Statutory Language: "Reembarkation at a Place Outside"

Considering terminology, context and statutory structure, the AAO's position was always bewildering. Subsection (A) posits that noncitizens ordered removed under any type of proceeding (e.g., expedited or removal)—or who have departed the United States while a removal order is outstanding—are subject to a five- or ten-year bar (20 years for any subsequent removal), preventing them from seeking admission (applying for an immigrant visa at a U.S. consulate or for adjustment of status in the United States) during the barred period. This section contains an "exception," making the bars inapplicable for a noncitizen "seeking admission within a period if, prior to the date of the [noncitizen]'s reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the [noncitizen]'s reapplying for admission." ¹⁶

This inelegant phrasing simply means that if the noncitizen is seeking permanent residence "within" the barred 5-/10-/20-year period, they must seek permission to reapply by filing a Form I-212 ¹⁷ from outside the United States. The awkward locution dates back to similar provisions in the Immigration Act of 1917, barring deported noncitizens from admission for one year unless prior to their "reembarkation at a foreign port" the Secretary of Labor "consented to their reapplying for admission." ¹⁸ After the barred period has expired, no I-212 from anywhere is at all required. The instructions to Form I-212, which are "incorporated into the regulations requiring its submission," ¹⁹ support this reading. ²⁰ Notably, however, unlike unlawful presence, a departure from the United States is not required to trigger the subsection (A) bar ("ordered removed . . . or departed . . .").

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Subsection (B) creates a three-year admission bar for noncitizens unlawfully present for a period of more than 180 days but less than one year, and a ten-year bar for those unlawfully present for one year or longer. What counts as unlawful presence—and there are multiple exceptions—is statutorily defined as any periods of presence after the expiration of a period of authorized stay, or any time subsequent to an entry without inspection. While this subsection does not contain an exception, it does provide for a discretionary waiver. Both unlawful presence bars are waivable where the noncitizen demonstrates that their U.S. citizen or lawfully resident spouse or parent will suffer extreme hardship in the event of refusal of admission. (The exclusion of children from consideration is perplexing and callous but unremarkable given the punitive nature of IIRIRA.) Importantly, the waiver includes no requirement of an I-212 (consent to reapply), or that the waiver be sought from outside the United States. It is simply understood that way because the bar is triggered by departure.

Finally, the severest measure, subsection (C)(i), provides that if the noncitizen has been unlawfully present for an aggregate period of more than one year, or has been ordered removed under any provision and "enters or attempts to reenter the United States without being admitted" is inadmissible. This provision contains both a waiver and an exception. The waiver applies only to self-petitioners under the Violence Against Women Act (VAWA) who show a tie between their removal, departure, or unlawful reentry and the battery or extreme cruelty rendering them eligible for VAWA relief.

The exception, on the other hand, renders inadmissibility inapplicable but only if the noncitizen is "seeking admission more than 10 years after the date of the [noncitizen]'s last departure from the" United States, and...