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

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: