Applying for Permanent Residence After the 10-Year Removal Bar

Under INA Section 212(a)(9)(A)(ii), persons who depart the United States pursuant to an order of removal are inadmissible for a period of ten years. Such persons can apply for readmission within the ten-year period after the date of their departure, but need to apply for and receive consent from the U.S. government abroad on Form I-212 before they can be readmitted to the United States. See INA Section 212(a)(9)(A)(iii). When a person accomplishes a readmission within the same ten-year period without demonstrating compliance with INA Section 212(a)(9)(A)(iii) and then seeks adjustment of status to that of a lawful permanent resident after the ten years have passed, the question which then arises is whether the readmission without permission renders the person permanently inadmissible for permanent residence. In a recent unpublished decision, the Board of Immigration Appeals (BIA) answered that question in the negative.

The respondent, a native and citizen of Mexico, was ordered removed from the United States in 2002. He then obtained a visitor visa and applied for admission to the U.S. in 2006 without receiving advance permission and by concealing his prior removal. During subsequent removal proceedings, the respondent applied for adjustment of status, on the basis of an immigrant visa petition filed by his U.S. citizen spouse, and sought several waivers of inadmissibility related to his unlawful presence and his fraudulent procurement of the visitor visa and admission to the U.S. The Immigration Judge denied his applications for relief.

On appeal to the BIA, respondent argued that the Immigration Judge erred by ruling that respondent was ineligible for adjustment of status because he remained subject to the ten-year removal bar. The BIA sustained respondent’s appeal and held, importantly, that respondent was not inadmissible because respondent was not seeking admission within the statutory ten-year period. Since respondent was requesting adjustment of status more than ten years after departing the United States under an order of removal, he was not foreclosed from establishing eligibility for permanent residence and could pursue his waivers of inadmissibility for fraud and unlawful presence.

The BIA’s unpublished decision does not have precedential effect, meaning that it cannot be cited or relied upon, but it is at least instructive on how to correctly interpret the temporal limitation contained in INA 212(a)(9)(A)(ii).

Timothy D. Widman is a Immigration Attorney and the owner of the Law Office of Timothy D. Widman, with offices in San Jose and Cupertino.

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