Adjudicating Forms I-212 for Aliens Inadmissible after a prior immigration violation or reinstated removal orders

U.S. Citizenship and Immigration Services (USCIS) on January 25, 2010, released a May 19, 2009, memorandum from Acting Deputy Director Michael Aytes to USCIS leadership entitled “Adjudicating Forms I-212 for Aliens Inadmissible Under Section 212(a)(9)(C) or Subject to Reinstatement Under Section 241(a)(5) of the Immigration and Nationality Act in light of Gonzalez v. DHS, 508 F.3d. 1227 (9th Cir. 2007).” The memorandum supersedes and rescinds in its entirety the March 31, 2006, memorandum entitled “Effect of Perez-Gonzalez v. Ashcroft on adjudication of Form I-212 applications filed by aliens who are subject to reinstated removal orders under INA § 241(a)(5).”

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INA § 245(a) [8 USCA § 1255(a)] permits certain aliens to adjust their status to that of a lawful permanent resident in the U.S. rather than visa processing abroad; however, aliens who entered the U.S. without being inspected (entries without inspection or EWIs) or who are presently not in a lawful status (present without inspection or PWIs) generally cannot adjust status in the U.S. INA § 245(i) created an exception to these adjustment bars for certain aliens who were the beneficiaries of visa petitions or labor certification applications filed on or before April 30, 2001, if they are admissible to the U.S.

INA § 212(a)(9)(C) [8 USCA § 1182(a)(9)(C)] renders inadmissible any alien who enters or attempts to enter without admission after a prior immigration violation. Under INA § 212(a)(9)(C)(i)(I), an alien is inadmissible if the alien enters or attempts to enter the U.S. without admission after having been unlawfully present in the U.S. for an aggregate period of more than one year. If the alien's entry or attempted entry without admission occurs after the alien has been ordered removed, the alien is inadmissible under INA § 212(a)(9)(C)(i)(II). An alien may be inadmissible under both § 212(a)(9)(C)(i)(I) and (II).

INA § 212(a)(9)(C)(i) provides that any alien who has been ordered removed and who then enters or attempts to reenter without being admitted is permanently barred from admission. However, INA § 212(a)(9)(C)(ii) provides an exception for an alien seeking admission more than 10 years after the date of the alien's last departure from the U.S. if, prior to the alien's reembarkation at a place outside of the U.S. or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien's reapplying for admission. Form I-212 is used to request this permission. The Secretary of Homeland Security's authority to grant such permission has been delegated to USCIS.

Prior to the Illegal Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the INS published a regulation at 8 CFR § 212.2(e) that allowed aliens to seek permission to reapply for admission while in the U.S. when the I-212 was filed in conjunction with an adjustment application. In addition, 8 CFR § 212.2(i) provided that any approval of the Form I-212 would be retroactive to the date when the alien departed for the U.S.

INA § 241(a)(5) [8 USCA § 1231(a)(5)] permits the Secretary of Homeland Security to reinstate a prior removal order against an alien who illegally reenters the U.S. after having been removed or having departed voluntarily under an order of removal. The prior order is reinstated from its original date and may not be reopened or reviewed (although the reinstatement order may be reviewed. INA § 241(a)(5) also provides that an alien against whom a removal order has been reinstated may not apply for any relief under the INA.

Courts, including the U.S. Court of Appeals for the Ninth Circuit, that have considered whether an alien whose prior removal order has been reinstated under INA § 241(a)(5) can apply for adjustment of status under INA § 245(i) have held that the alien cannot. However, in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), the Ninth Circuit, contrary to every other circuit and the Board of Immigration Appeals, held that an alien who illegally reenters the U.S. after having been removed could file for adjustment of status (in conjunction with an I-212 application) before the prior removal order is reinstated. Subsequently, the Ninth Circuit overruled its decision in Perez-Gonzalez v. Ashcroft. However, in the interim, USCIS issued the March 31, 2006, policy memorandum providing guidance for USCIS officers adjudicating I-212 petitions in the Ninth Circuit and for those adjudicating such petitions elsewhere. Then, on November 13, 2006, the U.S District Court for the Western District of Washington in Gonzales v. U.S. Dept. of Homeland Sec., 239 F.R.D. 620 (W.D. Wash. 2006), enjoined DHS from following its March 31, 2006 guidance. As a result, USCIS placed a hold on all cases affected by the district court's injunction.

Subsequently the Ninth Circuit, in vacating the district court's order in Gonzales, repudiated its decision in Gonzales v. Department of Homeland Sec., 508 F.3d 1227 (9th Cir. 2007), finding that it must defer to the Board's decision in Matter of Torres-Garcia, 23 I. & N. Dec. 866 (B.I.A. 2006), which held that an alien who reenters the U.S. without admission after having been removed is inadmissible under INA § 212(a)(9)(C)(i)(II). As a result, USCIS has now rescinded its March 31, 2006, memorandum and, in its May 19, 2009, memorandum, provides uniform guidance to all USCIS officers adjudicating I-212 applications.

The May 19, 2009 memorandum, which is reproduced below, directs that all 245(i) cases that were previously placed on hold should now be adjudicated in accordance with the guidance given in the memorandum and current processing guidelines for consent to reapply applications. The memorandum explains that the guidance is prospective and applies to all 245(i) adjustment applications and all § 212(a)(9)(C)(ii) Form I-212s filings that are currently pending or are filed in the future regardless of the circuit in which the case arose or is adjudicated. The new guidance does not affect requests for consent to reapply or adjustment applications that were previously approved based on the 2006 memorandum.

The memorandum explains in detail how to process I-212s from:

• aliens seeking consent to reapply prior to the expiration of the required 10-year period specified under § 212(a)(9)(C)(ii)

• aliens inadmissible under § 212(a)(9)(C)(i) and subject to removal orders reinstated prior to the filing of the I-212

• aliens inadmissible under § 212(a)(9)(C)(i) and subject to removal orders reinstated at the time of adjudication of the I-212 application

• aliens inadmissible under § 212(a)(9)(C)(i)(II) with no reinstatement of a prior removal order at the time of adjudication of the I-212 application

• aliens eligible to file for consent to reapply

• VAWA self-petitioners inadmissible under § 212(a)(9)(C)(i)

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Immigration Judge Benchbook online

June 4, 2009

EOIR Provides Public Access to “Immigration Judge Benchbook”

Vital Reference Handbook for Immigration Judges Is Accessible Online

FALLS CHURCH, Va. – The Executive Office for Immigration Review (EOIR) announced that it has posted the “Immigration Judge Benchbook” (Benchbook) online, as part of ongoing efforts to better meet the information needs of the people it serves. The general public can now view the many reference materials that the nation’s immigration judges use daily to conduct immigration proceedings and carry out crucial decision-making responsibilities. Moreover, providing public access to the Benchbook is in line with EOIR’s efforts to promote greater accountability and transparency of agency operations. The Benchbook is available on EOIR’s website at http://www.usdoj.gov/eoir/vll/benchbook/index.html.

EOIR initially established the Benchbook in 1985, as a reference guide developed by immigration judges for use by immigration judges. In 2007, EOIR revamped the Benchbook in an innovative attempt to merge solid legal reasoning with the latest technology available. As a result, the Benchbook is now a vital, up-to-date interactive resource that includes:

• Tools (such as checklists, worksheets, forms, introductory guides, and sample orders) that help immigration judges prepare for various proceedings.
• An interactive template that helps immigration judges build clear, concise, and well-reasoned decisions.
• Internet links and search tools that provide immigration judges quick access to helpful legal resources.
• “Alerts” that promptly advise immigration judges of relevant legal and policy changes, as well as Benchbook updates.

Information about appearing before immigration judges in immigration court is available in EOIR’s Immigration Court Practice Manual, which can be found on EOIR’s website at http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm.

The Benchbook now complements the Immigration Court Practice Manual and the Board of Immigration Appeals Practice Manual (http://www.usdoj.gov/eoir/vll/qapracmanual/ apptmtn4.htm) in providing helpful information to the people EOIR serves.

The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. Under delegated authority from the Attorney General, immigration judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws. EOIR’s immigration judges conduct administrative court proceedings in immigration courts located throughout the nation. They determine whether foreign-born individuals—who are charged by the Department of Homeland Security with violating immigration law—should be ordered removed from the United States or should be granted relief from removal and be permitted to remain in this country. The Board of Immigration Appeals primarily reviews appeals of decisions by immigration judges. EOIR’s Office of the Chief Administrative Hearing Officer adjudicates immigration-related employment cases. EOIR is committed to ensuring fairness in all of the cases it adjudicates.