INS on Grounds of Inadmissibility, Unlawful Presence

(96Act.043)

Subject: Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and Nationality Act (Act).

Date: June 17, 1997

To: Management Team
All Regional Directors
All District Directors (Including Foreign)
All Regional Counsels
All District Counsel
All OIC's (including foreign)
All Port Directors
All Service Center Directors
All Training Academies (Glynco and Arteia)
All Chief Patrol Agents
All Asylum Officers

From: Office of Programs (HQPGM)

Summary

The purpose of this memorandum is to provide interim guidance on the grounds of inadmissibility under sections 212(a)(6)(B) and 212(a)(9)(C) of the Immigration and Nationality Act (Act). This memorandum also modifies the advice provided in its interim memorandum (96ACT 026) dated March 31, 1997, with respect to: (a) calculating the periods of an alien's unlawful presence in the United States for purposes of determining inadmissibility under section 212(a)(9)(C)(i)(I) of the Act; and (b) tolling the periods of an alien's unlawful presence in the United States while an adjustment of status application is pending.

Section 212(a)(6)(B) of the Act

Applicability

Section 212(a)(6)(B) of the Act, as amended by section 301(c)(1) of IIRAIRA, renders inadmissible any alien who without reasonable cause failed to attend or remain in attendance at a hearing to determine his or her inadmissibility or deportability. Such aliens are inadmissible for 5 years after date of departure or removal. The alien, therefore, must have been subsequently removed, or must have departed the United States in order for this ground of inadmissibility to apply.

The Service has determined that section 212(a)(6)(B) of the Act does not apply to aliens who failed to attend a deportation proceeding under section 242 of the Act or an exclusion hearing under section 236 of the Act (as those two sections existed prior to their amendment by IIRAIRA). Those proceedings would have commenced upon filing with an immigration court Form I-221, Order to Show Cause and Notice of Hearing, or Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, respectively. Aliens placed in proceedings after April 1, 1997, will have been issued the new charging document, Form I-682, Notice to Appear. Therefore, any alien placed in deportation or exclusion proceedings before April 1, 1997, will not be considered inadmissible under section 212(a)(6)(B) of the Act for failure to attend the removal hearing, even if it was not actually scheduled until after April 1, 1997.

Note that an alien who failed to attend or remain in attendance at a removal, deportation, or exclusion hearing may have received an in absentia order of removal. Thus, such an alien may also be inadmissible under section 212(a)(9)(A) of the Act. See March 31, 1997, memorandum (96ACT 026).

Reasonable Cause

Aliens placed in proceedings on or after April 1, 1997, who can establish that failure to attend or remain in attendance at a removal proceeding was for reasonable cause are not inadmissible under section 212(a)(6)(B) of the Act. The alien would establishreasonable cause before the immigration judge, if seeking to reopen the proceeding; to the consular officer, if applying for a visa; to the inspecting officer, if applying for admission; or to the Service's adjudicating officer, if applying for adjustment of status before the Service. The burden rests with the alien to establish there was reasonable cause for not attending or remaining at the removal hearing.

Section 212(a)(9)(B) of the Act

Unlawful Presence

Section 212(a)(9)(B)(ii) of the Act defines the term "unlawfully present" for purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act. For purposes of these sections, an alien is deemed unlawfully present in the United States if present after expiration of a period of stay authorized by the Attorney General or present in the United States without being admitted or paroled.

Three and Ten-Year Bars to Admission

Section 212(a)(9)(B)(i) of the Act is broken into two sub-groups according to the period of unlawful presence in the United States. Section 212(a)(9)(B)(i)(I) of the Act renders inadmissible those aliens who were unlawfully present for more than 180 days, but less than one year, and subjects them to a 3-year bar to admission. Section 212(a)(9)(B)(i)(II) renders inadmissible those aliens unlawfully present for 1 year or more, and subjects them to a 10-year bar to admission. These grounds of inadmissibility are applicable only to aliens seeking visas or readmission to the United States following a prior period of unlawful presence in the United States.

Unlike section 212(a)(9)(C)(i)(I) of the Act, which is discussed further below, the periods of unlawful presence under sections 212(a)(9)(B)(i)(I) and (II) are not counted in the aggregate. For example, section 212(a)(9)(B)(i)(I) of the Act would not apply to an alien who made two prior visits to the United States, accrued 4 months of unlawful presence during each visit, and is now applying for a nonimmigrant visa to make a third visit to the United States. This is because each period of unlawful presence in the United States is counted separately for purposes of section 212(a)(9)(B)(i) of the Act, and in this example no single period of unlawful presence exceeded 180 days. It should be noted, however, that the consular officer would exercise discretion in deciding whether to grant the nonimmigrant visa, given the alien's prior periods of unlawful presence in the United States.

Time Exempted by Statute

Section 212(a)(9)(B)(iii) of the Act provides that certain periods of presence in the United States are not considered unlawful. This exemption includes time spent in the United States while the alien is:

Under the age of 18

A bona fide applicant for asylum (including time while administrative or judicial review is pending), unless employed without authorization;

Under family unity protection pursuant to section 301 of the Immigration Act of 1990, as amended; or

A battered spouse or child able to establish a substantial connection between the status violation/unlawful entry and the abuse.

Tolling for Good Cause

Section 212(a)(9)(B)(iv) of the Act provides that certain periods of time spent in the United States are tolled (suspended) and do not count towards the periods of unlawful presence described under section 212(a)(9)(B)(i)(I). In order for the tolling provision to apply, the alien must have been lawfully admitted or paroled into the United States, must have filed the application before the previously authorized stay expired, and must not have been employed without authorization in the United States before the application was filed or while it was pending. By statute, the tolling is limited to 120 days and covers the following applications:

Applications for extension of stay under the Service's regulations at 8 CFR 214.1; and

Applications for change of nonimmigrant status under section 248 of the Act.

Treatment of Pending Adjustment of Status Applications

The Service has revisited the guidance provided in its March 31, 1997, memorandum with respect to tolling the period of unlawful presence for aliens with pending adjustment of status applications. Properly filed applications for adjustment of status under sections 245(a) and 245(i) of the Act will not be subject to the 120-day tolling provisions under section 212(a)(9)(B)(iv) of the Act. Aliens with properly filed applications for adjustment of status under both sections 245(a) and 245(i) of the Act will be considered aliens present in the United States under a period of stay authorized by the Attorney General. Such period will also cover renewal of a denied application in proceedings. An alien who first files an application for adjustment of status after being served with a notice to appear for removal proceedings (Form I-862), however, is not deemed to have a period of stay authorized by the Attorney General.

Aliens Present in the United States Under a Period of Stay Authorized by the Attorney General

For purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act only, the Service considers the following classes of aliens to be present in the United States pursuant to a period of stay authorized by the Attorney General:

Aliens with properly filed applications for adjustment of status under sections 245 and 245(i) of the Act with the Service (as described above);

Aliens admitted to the United States as refugees under section 207 of the Act,

Aliens granted asylum under section 208 of the Act;

Aliens granted withholding of deportation/removal under section 243(h) of the Act for aliens placed in proceedings before April 1, 1997, or under section 241(b)(3) of the Act for aliens placed in proceedings on or after April 1, 1997;

Aliens under a current grant of Deferred Enforced Departure (DED) pursuant to an order by the President;

Aliens under a current grant of Temporary Protected Status (TPS) before April 1, 1997, under section 244A of the Act, or after April 1, 1997, under section 244 of the Act; and

Cuban-Haitian entrants under section 202(b) of Pub. L. 99-603

Aliens Not Considered to be in a Period of Stay Authorized by the Attorney General

For purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act the Service considers the following classes of Aliens NOT to be present in the United States pursuant to a period of stay authorized by the Attorney General:

Aliens under an order of supervision;
Aliens granted deferred action status;
Aliens with pending applications for cancellation of removal;
Aliens with pending applications for withholding of removal;
Aliens issued voluntary departure prior to, during, or following proceedings;
Aliens granted satisfactory departure; and
Aliens in Federal court litigation.

Section 212(a)(9)(C) of the Act

Section 212(a)(9)(C)(i)(I) of the Act

Section 212(a)(9)(C)(i)(I) of the Act renders inadmissible those aliens who were previously unlawfully present in the United States for an aggregate period of more than one year who enter or attempt to re-enter the United States without being admitted. These aliens re permanently inadmissible, however, after they have been outside the United States for at least 10 years, they may seek consent to reapply for admission from the Attorney General.

The Service has revisited its March 31, 1997, guidance with respect to measuring time unlawfully present under this ground of inadmissibility. No period of unlawful presence in the United States prior to April 1, 1997, is considered for purposes of applying section 212(a)(9)(C)(i)(I) of the Act. Therefore, only those aliens entering or attempting to enter the United States without being admitted on or after April 1, 1998, following an aggregate period of unlawful presence of 1 year or more are inadmissible under section 212(a)(9)(C)(i)(I) of the Act.

Section 212(a)(9)(C)(i)(II) of the Act

Section 212(a)(9)(C)(i)(II) of the Act renders inadmissible those aliens who have been ordered removed under sections 235(b)(1) or 240 of the Act, or any other provision of law, and who enter or attempt to reenter the United States without being admitted. These aliens are also permanently inadmissible, but may seek consent to reapply for admission from the Attorney General after they have been outside of the United States for 10 years.

Section 212(a)(9)(C)(i)(II) of the Act applies to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the United States unlawfully any time on or after April1, 1997. The alien may have been placed in removal proceedings before or after April 1, 1997, but the unlawful reentry or attempted unlawful reentry must have occurred on or after April 1, 1997.

Treatment of Cases Already Adjudicated

on or After April 1, 1997 Based on the March 31, 1997 Guidance

Applications for Adjustment of Status

For adjustment of status applications decided on or after April 1, 1997, that were unfavorable to the alien based solely on a finding of inadmissibility under section 212(a)(9)(C) of the Act where the Service relied on the March 31, 1997, guidance (96ACT 026), the Service shall reopen the adjustment of proceeding at such time as the case is brought to the attention of the Service.

Applications for Admission

For applications for admission denied on or after April 1, 1997, based solely on a finding of inadmissibility under section 212(a)(9)(C) of the Act where the Service relied on the March 31, 1997, guidance (96ACT 026), the Service shall move to cancel proceedings under section 240 of the Act at such time as the case is brought to the attention of the Service. When the alien's inspection was deferred on or after April 1, 1997, based solely on a finding of inadmissibility under section 212(a)(9)(C) of the Act which relied on the March 31 guidance, the Service shall admit the alien if otherwise admissible at the time the inspection is completed. For aliens who withdrew their application for admission on or after April 1, 1997, solely on a finding of inadmissibility under section 212(a)(9)(C) of the Act, subsequent applications for admission shall be without prejudice to the withdrawal. Service look-outs shall be removed at such times as a case described above comes to the attention of the Service.

Paul W. Virtue

Acting Executive Associate Commissioner

CC: Official File Copy

HQUIRT
HQPGM
HQBEN
HQINS
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INS: HQIRT:842-9236:05/27/97;ajr:6/9/97:sc