DO THE 3 AND 10 YEAR BARS RUN INSIDE THE US?
June 17, 2021
Can the 3 or 10-year inadmissibility bars found at section 212(a)(9)(B)(i) of the Immigration and Nationality Act run inside the US?
Our office has successfully argued that it does. Our client first entered the U.S. on a visitor visa in 2006 and overstayed her visa until 2008 when she returned to Mexico. She subsequently applied for and was granted humanitarian parole pursuant to INA § 212(d)(5) and was paroled into the U.S. in 2013. Our client overstayed her grant of parole and applied for adjustment of status in 2019 when she became eligible. Despite pushback from USCIS, we successfully argued that persons like our client who trigger the 10-year bar who are subsequently paroled into the U.S. may cure the inadmissibility period while in the U.S. Our position was supported the following:
USCIS CHIEF COUNSEL
In 2006 and 2009, USCIS Chief Counsel issued opinion letters specifically stating that the INA § 212(a)(9)(B) inadmissibility period will “continue to run” for an alien present in the U.S. subsequent to the departure that triggered the period of inadmissibility “even if the alien is paroled in the United States . . . despite his or her inadmissibility under section 212(a)(9)(B).” See Letter from Robert Divine to David Berry, July14, 2006, and from Lynden Melmed to Daniel Horne, January 26, 2009, both attached hereto as Exhibit 3.
ADMINISTRATIVE APPEALS OFFICE
The AAO has ruled that an applicant for adjustment of status can satisfy the unlawful presence bar to admission through time spent outside or inside the U.S. See In re Salles-Vaz (AAO, Feb. 22, 2005), attached hereto as Exhibit 4. In that case, the alien departed the U.S. during the pendency of an adjustment of status application filed with USCIS after he accrued more than 180 days of unlawful presence, thus triggering the 3-year bar, but was “readmitted” with advance parole to continue the adjustment application. Id. Since over three years had lapsed since the departure by the time the appeal was adjudicated, the AAO held that he was no longer barred under § 212(a)(9)(B)(i)(I) since “[t]he passage of time has created a new circumstance which renders the applicant free from any bar to admissibility based upon his unlawful presence.” Id.
INA § 212(a)(9)(B)(i) and relevant legal authority make clear that § 212(a)(9)(B) inadmissibility is triggered by the alien’s departure from the United States. See Matter of Rodarte, 23 I&N Dec. 905, 909 (BIA 2006). The statute is silent, however, as to whether the period of inadmissibility must be “served” outside the U.S. The AAO’s Salles-Vaz and BIA’s Rodarte decisions refer exclusively to the plain statutory language of § 212(a)(9)(B): the period of inadmissibility is triggered by the alien’s departure from the U.S. and the statute imposes no other requirements as to how/where this period is to be met. While § 212(a)(9)(B) is silent about any such requirement, INA §§ 212(a)(9)(A) and (C) each contain specific “exception” subsections that directly state that the inadmissibility shall not apply to aliens who “seek admission . . . prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from foreign contiguous territory . . .” where the Attorney General has consented to the alien’s applying for readmission (emphasis added). Since Congress included no similar language in § 212(a)(9)(B), this leads directly to the conclusion, based on basic rules of statutory construction, that an alien may “serve” the three or ten-year bar within the U.S.
BOARD OF IMMIGRATION APPEALS
In unpublished decision Jose Armando Cruz, A087-241-021 (April 9, 2014) (attached hereto as Exhibit 5) the BIA held that a person who had triggered the three-year bar, returned to the United States without inspection 18 months later, and applied for adjustment more than three years after his departure was not inadmissible because the three years had already run. The BIA found that § 212(a)(9)(B) did not require that the three-year period be spent outside the U.S. even for someone who had returned without inspection. Id. The BIA reasoned that § 212(a)(9)(B) had always been understood in their precedents “as creating temporary 3- and 10-year bars (in sections 212(a)(9)(B)(i)(I) and (II) of the Act, respectively) to an alien’s admissibility following his departure from the United States after having been unlawfully present for (respectively) more than 180 days, or 1 year or more”, as opposed to § 212(a)(9)(C), which creates a “permanent bar.” Id.
The Board held that an applicant for adjustment is “seeking admission,” as distinguished from those who entered the country illegally and “sought admission” and that the § 212(a)(9)(B) bars only attach to a person who has departed “and again seeks admission” within the relevant period. Id. According to the BIA, Congress understood the difference in these terms because it employed the latter when it created the misrepresentation ground of inadmissibility for those who “seek or have sought” a visa. Id. To apply the unlawful presence bars to those who returned to the United States by virtue of their reentering illegally within the three- or ten-year period would be to create a “permanent bar,” which Congress did not intend. Id. “It is the alien's unlawful presence followed by his departure from the United States that gives rise to the (temporary) ground of inadmissibility and not the very act of returning to the United States during the period in which the bar applies.” Id.
Four years later the Board reached the same conclusion based on the same reasoning in another unpublished decision with similar facts: the adjustment applicant had triggered the three-year bar, returned illegally within that three-year period, and applied for adjustment more than three years later. Jose Tapia-Cervantes, A208-939-645 (Dec. 21, 2018), attached hereto as Exhibit 6. The BIA held that the applicant did not need to file a waiver since the three-year time period had already run. Id. The BIA explicitly stated, “[i]n view of that ambiguous language, together with the light cast on the meaning of this language by the authorities and legislative history cited herein, we conclude that section 212(a)(9)(B) of the Act creates a temporary bar to admissibility. Accordingly, we are persuaded by the respondent’s argument that he sought admission more than 3 years after the expiration of his inadmissibility period that commenced with his return to Mexico in March 2006.”
See also Torres de Lima Neto v. Thompson, No. 2:20-CV-00618-KM-JBC (D.N.J. Dec. 10, 2020).
The above precedent makes clear that persons like our client who are applicants for adjustment of status can satisfy the unlawful presence bar to admission through time spent outside or inside the U.S. Although our client triggered the 10-year bar when she departed the United States in 2008, more than 10 years elapsed prior to the submission of her application for adjustment of status, which rendered the 10-year bar inapplicable to her.
June 24, 2022 Update: On June 24, 2022, USCIS issued a policy alert updating its stance on whether the 3 or 10-year bar run inside the United States. USCIS clarified that the 3 or 10-year bars can run inside the United States, regardless of whether the noncitizen re-enters the U.S. legally or illegally. It is worthy to note that this memorandum does not change the law or policy on how the permanent bar is implemented. A noncitizen who departs and triggers the 10-year bar and later re-enters without inspection will trigger the perm bar and although the 10-year bar will continue to run per the policy alert, the noncitizen will still be stuck with the perm bar. This policy alert only helps noncitizens in situations where the noncitizen re-enters the U.S legally and does not trigger the perm bar. Before this policy alert, USCIS’ stance was that the 3/10 yr bars only ran while the noncitizen was outside the US, even if the noncitizen entered the U.S. legally. See https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220624-INA212a9B.pdf.