@

STATE DEPARTMENT MEMORANDUM
ON BARS OF INADMISSIBILITY
(April 4, 1998)

@

R 040134Z APR 98 FM SECSTATE WASHDC TO ALL
DIPLOMATIC AND CONSULAR POSTS SPECIAL
EMBASSY PROGRAM GUANGZHOU POUCH BUJUMBURA
POUCH PORT MORESBY POUCH INFO HQ
USINS WASHDC DEA WASHDC 0000 USIA WASHDC 0000
DIRNSA FT MEADE MD CIA WASHDC 0000 DEPT
OF JUSTICE WASHDC 


Unclas State 060539 Visas, Inform Consuls 


E.O. 12958: N/A Tags: CVIS Subject: P.L. 104-
208 Update No. 36: 212(a)(9)(A)-(C),
212(a)(6)(A) and (B) 


Ref: A) 96 State 239978 (IIRAIRA Update No.
10) B) 97 State 62429 (Update No. 20) C) 97
State 235245 (Update No.
34) D) 98 State 51296 (Update No. 35) 


1. Summary. Reftels provided posts with
preliminary guidance on revised INA Section
212(a)(9), relating to aliens previously
deported/removed and aliens who depart after
being "unlawfully present." This cable
provides more detailed guidance, based
on recent interpretations from INS. The
application of 212(a)(9) can be quite
complicated. In particular, there are many
exceptions and special rules to consider when
calculating the period of "unlawful presence"
for purposes of the new three- and
ten-year bars of 212(a)(9)(b). In addition,
some 212(a)(9) ineligibility provisions apply
to events or conduct prior to April 1,
1997, and some do not. The basic rules for
interpreting 212(a)(9) (along with additional
guidance on revised 212(a)(6)(A) and
(B)) are set forth below. At the end of this
cable is a summary chart listing the
provisions and the types of cases they cover,
along with several examples to illustrate how
the rules operate in practice. End
summary 


212(a)(9)(A) ("9A"): Aliens Previously
Removed (Deported) 


2. New 212(a)(9)(A)(i) and (ii) roughly
correspond to former 212(a)(6)(A) and (6)(B),
relating to aliens previously
excluded/deported. The main change from the
previous law is that the periods of
inadmissibility have been substantially
lengthened: 


* arriving aliens denied admission and
removed (excluded), who were previously
ineligible for one year, are now generally
ineligible for either: five years, if the
removal order was issued on/after April 1,
1997, or ten years, if the removal
(exclusion)
order was issued prior to 4/1/97; 


* aliens ordered removed after having been
admitted or after having entered without
inspection, who were previously ineligible
for five years, are now generally ineligible
for ten years; and 


* removed/deported aliens convicted of an
aggravated felony, who were previously
ineligible for twenty years, are now
permanently ineligible. 


3. 212(a)(9)(A)(i) ("9A1"): This section
applies to arriving aliens who applied for
admission and were found inadmissible, and
who were ordered removed on or after April 1,
1997, by either an immigration judge under
INA 240 or by the POE Inspector
under the new summary removal provisions of
INA 235(b)(1). An alien in this category is
ineligible for five years after the first
removal, or for twenty years if removed more
than once, or permanently, if the alien was
convicted of an aggravated felony.
Conoffs should note that this section applies
only/only to removal orders which were issued
on or after April 1, 1997. An alien
excluded before that date under pre-IIRAIRA
provisions would be ineligible for ten years
under new INA 212(a)(9)(A)(ii), as
described below. 


4. 212(a)(9)(A)(ii) ("9A2"): under this
section, aliens previously ordered removed or
deported, other than those covered by
9A1, are ineligible for either: ten years
(for a first removal), twenty years (for
subsequent removals), or permanently (in the
case
of deportees convicted of aggravated
felonies). Unlike 9A1, this provision applies
to orders rendered either before or after
April 1, 1997. 


5. The class of aliens subject to the ten-
year bar of 9A2 Includes: 


* aliens apprehended in the U.S. and removed
under INA 240; 


* aliens apprehended in the U.S. and deported
under former INA 242 (i.e., those formerly
subject to the five-year bar of old
INA 212(a)(6)(B)); 


* arriving aliens excluded under the former
version of INA 236 (i.e., those formerly
subject to the one-year bar of old INA
212(a)(6)(A)); and 


* aliens denied admission under VWPP and
ordered removed. 


6. As under prior law, if an alien is
permitted to withdraw his/her application for
admission prior to any removal order being
entered, the alien would not be ineligible
under either subsection of 9A. If, however,
an alien departs the U.S. on his/her own
after/after a removal order has already been
issued, the alien is subject to 9A. 


7. Also as under prior law, aliens subject to
these provisions may request consent from the
attorney general to reapply for
admission at any time following removal. See
INA 212(a)(9)(A)(iii). (Nonimmigrant visa
applicants must seek consent to
reapply in conjunction with their request for
a waiver under INA 212(d)(3)(A)). 


8. As before, an alien seeking consent to
reapply for admission prior to the expiration
of the ineligibility period must complete
the required Form I-212. The procedures to be
followed for processing such requests are
unchanged, and are set forth in 9
FAM Part IV Appendix N, Sec. 402, and Notes 4
and 5 to former 9 FAM 40.61 (covering former
INA 212(a)(6)(A)).
(Notes to new 9 FAM 40.91, covering new 9A,
have not yet been published. If posts do not
have access to the notes to
former 9 FAM 40.61 and require assistance in
processing requests for consent to reapply,
please contact CA/VO/F/P or your
regional INS office.) 


9. The change in the law has resulted in the
somewhat anomalous result that some aliens
who had been excluded/deported
under the old law and subsequently satisfied
the prior one- or five-year bar or had
received consent to reapply and were then
free to travel to the U.S. now may find
themselves once again inadmissible. For
example, an alien excluded in 1990 would only
have been inadmissible for one year and
could, under old 212(a)(6)(A), have freely
traveled to the U.S. any time from 1991
on, until 9A2 went into effect on April 1,
1997, at which time the alien became
ineligible again, this time for ten years
from the
date of deportation, or until 2000. 


10. To address the perceived inequities in
retroactively applying new, longer
ineligibility periods to aliens who were
excluded/deported under the old law and who
expected only to be subject to the one- or
five-year bar, or who were granted
consent to reapply based on the one- or five-
year bar, INS has prepared draft regulations
which would establish special
procedures for processing requests for
consent to reapply in such cases. Under the
draft regulation, aliens who were ordered
deported prior to 4/1/97 could seek the
Attorney General's consent to reapply for
admission without having to file a separate
Form I-212 or pay the attendant processing
fee. To ensure equitable treatment of aliens
deported under pre-IIRAIRA law, the
draft regulations would allow for a blanket
grant of consent to reapply if the alien
meets certain criteria. In particular, the
alien
would have to establish that he/she is not
ineligible under any other ground of 212(a),
and that he/she either: (a) remained
outside the U.S. for the period required
under the old law, or (b) was granted consent
to reapply for admission prior to 4/1/97.


11. Pending promulgation of these proposed
regulations, INS is extending sympathetic
consideration, on a case-by-case basis,
to aliens who file I- 212 applications and
who have already been abroad for the period
of ineligibility which applied to them
under the old law. Posts will be notified
when the proposed regulations come into
force. Until that time, both the form and the
fee will be required. 


12. INS routinely enters removed/deported
aliens into the lookout system and, as
before, posts should rely primarily on class
checks to identify aliens subject to 9A. FYI:
The class codes for 9A require some
explanation. The logical class codes for 9A
would be the shorthand versions of the two
applicable INA subsections, i.e., 9A1 and
9A2. However, because an alien subject
to 9A1 might be ineligible for five years,
twenty years, or permanently, and an alien
subject to 9A2 might be ineligible for ten
years, twenty years, or permanently, it has
not sufficient to use only two class codes.
Rather, six class codes were needed, to
indicate both the applicable section of the
law and/and the applicable ineligibility
period. To complicate matters, the class code
had to be limited to three characters. To
address all these considerations, class codes
had to be selected which do not
correspond exactly to the shorthand version
of the applicable INA section. The codes are
as follows: 


91A (or ER6 or ER7) - subject to five-year
bar of 9A1 91B - subject to twenty-year bar
of 9A1 91C - subject to permanent
bar of 9A1 92A - subject to ten-year bar of
9A2 92B - subject to twenty-year bar of 9A2
92C - subject to permanent bar of
9A2 


The codes can be quickly deciphered in the
following fashion: The first character (9)
refers to INA section 212(a)(9), the
second character (1 or 2) indicates whether
the ineligibility is under 9A1 or 9A2, and
the last character (A, B or C) indicates
the length of the ineligibility period, with
A indicating the shortest period (five or ten
years, depending on whether it's a 9A1 or
9A2 case), B indicating a twenty-year bar for
repeat removals, and C indicating a permanent
bar for aggravated felony
convictions. (Note: aliens subject to 9A1 may
also appear under the INS Code ER6 or ER7.
Codes ER6 and ER7 indicate
that the alien was denied admission at the
POE under the new expedited removal provision
for aliens found inadmissible under
either INA 212(a)(6)(C) or 212(a)(7),
respectively.) 


13. Conversion of pre-existing lookout codes
is a complex operation, and not all aliens
who were excluded or deported prior
to April 1, 1997, and who are still
ineligible under the new law will appear in
class under the proper code. State class
entries
under the former codes have yet to be
converted. INS entries have been converted
but it is now apparent that old 6a entries
were incorrectly converted to 91A (the class
code for the five- year bar of 9A1), when
they should have been converted to
92a (the class code corresponding to the ten-
year bar of 9A2). If post encounters a 91A
class entry dated prior to April 1997,
post should assume that this was an error and
that the proper class code should be 92A.
(recall that the five- year bar of 9A1
applies only to aliens whose removal order
has issued on/after April 1, 1997; therefore,
it is not possible to have a valid 91A
class entry prior to April 1997.) Also please
note that in many cases where a deportation
ineligibility has been "resurrected" by
the retroactive application of the new,
longer ineligibility periods, there will be
no class entry because the pre- IIRAIRA class
entry will have already been purged. However,
as noted above (paras 10-11), these cases
would most likely be approved for
consent to reapply in any event, so the
absence of a class entry in such cases is not
particularly significant. 


14. If post is not able to determine the
proper ineligibility period from the class
entry and the interview with the applicant,
post
should ask the alien to produce the
deportation or removal order. Post should not
send routine requests to INS to check its
records but should place the burden on the
applicant to produce his/her deportation
record for review by Conoff. 


212(a)(9)(B) ("9B") : Aliens Unlawfully
Present 


General Scope, Differences Between 9B1 and
9B2 


15. The three-year bar: under INA
212(a)(9)(B)(i)(I)("9B1"), aliens who were
unlawfully present in the U.S. for over 180
days
but less than one year, and who subsequently
depart the U.S. voluntarily prior to
commencement of removal proceedings, are
inadmissible for three years. A departure is
considered voluntary for 9B1 purposes if the
alien departs either entirely on his/her
own or pursuant to a grant of "voluntary
departure." 


16. The ten-year bar: under INA
212(a)(9)(B)(i)(II)("9B2"), aliens who were
unlawfully present in the U.S. for one year
or
more, and who subsequently depart the U.S.,
are inadmissible for ten years. 


17. There are important differences between
9B1 and 9B2, aside from the obvious
differences in the length of the
ineligibility
period and the period of unlawful presence
required to trigger it. As explained more
fully below, 9B1 applies only to cases
involving departures from the U.S. which were
voluntary and which occurred prior to the
commencement of removal
proceedings. 9B2, on the other hand, applies
to both voluntary and involuntary departure
cases, and regardless of whether
departure occurred before of after
commencement of removal proceedings. 


18. One of the most confusing aspects of 9B
is the differing treatment accorded to aliens
under 9B1, depending on whether the
alien departed before or after commencement
of removal proceedings. Because 9B1, by its
terms, applies to aliens who
departed "prior to the commencement of
[removal] proceedings," it follows logically
that it does not/not apply to aliens who
depart after/after removal proceedings have
commenced. Removal proceedings generally
begin when a Form I-862, "notice to
appears (NTA), is filed with the immigration
court. Thus, an alien who was unlawfully
present for over 180 days but less than
one year who departs voluntarily before any
Form I-862 has been filed with the
immigration court would/would be subject to
the three-year bar, whereas an alien in the
same circumstances who departs voluntarily
after/after an I-862 has been filed would
not/not be subject to the three-year bar,
even though he/she has unlawfully present for
the period set forth in 9B1. (Although
such an alien would not be subject to 9B,
he/she might be ineligible for a visa under
some other INA provision (e.g., as a
self-deportee under 9A (if departure occurred
after an order of removal has issued), or for
failing to attend an immigration
hearing under 212(a)(6)(b)). 


19. In a particular case, it may be difficult
to know whether the alien departed before the
filing of an I-862 and commencement
of removal proceedings. In such cases, if
post finds that the alien voluntarily
departed the U.S. after being unlawfully
present for
more than 180 days but less than one year,
conoff may presume that the applicant is
subject to the three-year bar of 9B1. The
burden is then on the applicant to prove that
removal proceedings had already commenced by
the time the applicant departed.
If the applicant can meet that burden (e.g.,
by presenting a copy of the Form I-862), then
the alien would not be ineligible under
9B1 (although, as noted above, presentation
of such evidence may reveal an ineligibility
under 9A, 212(a)(6)(B), or some other
provision). 


20. Unlike the three-year bar of 9B1, the
ten-year bar of 9B2 makes no reference to
departure prior to removal proceedings.
Therefore, the ten- year bar of 9B2 applies
to aliens who depart the U.S. after an
unlawful presence of one year or more,
regardless of whether departure occurs before
or after any removal proceedings have begun,
i.e., before or after the I- 862
was filed with the immigration court. 


21. Another important difference between 9B1
and 9B2 is that 9B1 applies only if the
alien's departure from the U.S. was
voluntary. 9B2, however, makes no mention of
voluntariness. Thus, an alien who is removed
(deported) after accruing more
than 180 days but less than one year of
unlawful presence would not/not be subject to
the three year bar of 9B1, both because
departure would not have occurred before
commencement of removal proceedings and/and
because the departure was not
voluntary. (The alien would, however, be
subject to 9A.) On the other hand, an alien
who is removed after accruing one year
or more of unlawful presence would/would be
subject to 9B2, even though departure was
involuntary. (The 9B2 ineligibility
would be in addition to whatever 9A
ineligibility applied.) 


22. The three- and ten-year bars of 9B1 and
9B2 are triggered by a departure from the
U.S. following accrual of the specified
period of unlawful presence. If an alien
accrues the requisite period of unlawful
presence but does not subsequently depart the
U.S. (e.g., in the case of an alien applying
for adjustment of status with the INS), then
9B would not apply. This point is
primarily provided on an FYI basis and is not
likely to be an issue in the visa context
because visa applicants generally must
depart the U.S. in order to apply for a visa.
(Although it is possible in some cases for an
alien to apply for and obtain a visa
without departing the U.S., stateside visa
processing through VO, or a consular waiver
of the personal appearance requirement
for aliens resident in the consular district
but present in the U.S., would not be
appropriate in cases where the alien appears
ineligible under 9B.) 


Calculating "unlawful presence" under
9B 


23. The statute defines "unlawful presence"
as presence in the U.S. without admission or
parole, or presence in the U.S. after
the expiration of the period of stay
authorized by the Attorney General. This
definition essentially encompasses three
categories
of aliens: aliens who enter without
inspection (EWI's), aliens who overstay the
date on their I-94 (overstays), and aliens
who
are determined by the INS or an immigration
judge to have violated the terms of their
stay (status violators). While this would
appear fairly straightforward on its face, in
fact, there are many special rules, caveats,
and exceptions which can make
calculation of the period of unlawful
presence quite complicated. The following
guidelines should help clarify the
calculation
process: 


24. Per Ref A, no period of tine prior to
April 1, 1997, counts toward unlawful
presence for 9B purposes. Because the 9B
clock did not start ticking until 4/1/97, no
alien could have been subject to the three-
year bar of 9B1 prior to September 28,
1997 (181 days after April 1), and no alien
can be subject to the ten-year bar of 9B2
until April 1, 1998, at the earliest. 


25. There are several other types of unlawful
presence which do not count toward the 9B
calculation. The most notable
exception applies to unlawful presence prior
to the alien's 18th birthday. Under INA
212(a)(9)(B)(ii)(I), "no period of time in
which an alien is under 18 years of age shall
be taken into account in determining the
period of unlawful presence ...." In other
words, for 9B to apply, the alien must have
been unlawfully present in the U.S. more than
180 days, beginning on or after the
alien's eighteenth birthday. There is no way
that an alien under the age of 18 could be
ineligible under 9B. 


26. The law also exempts periods of unlawful
presence accrued by certain aliens with bona
fide asylum applications pending,
beneficiaries of family unity protection, and
battered women and children. See
212(a)(9)(B)(iii)(II)-(IV). In addition,
212(a)(9)(B)(iv) suspends the clock -- for
purposes of 9B1 but not/not 9B2 -- for up to
120 days for aliens with pending
applications for extension of stay or change
of status, provided the application has
timely filed and non-frivolous and the alien
did not take up unauthorized employment prior
to or during the pendency of the application.
INS is preparing regulations which
eliminate any unlawful presence if the alien
filed the application in a timely manner,
provided the application was subsequently
granted; consistent with this, aliens should
not be considered to have accrued any
unlawful presence during the pendency of a
successful application for extension or
change of status. If a visa applicant who
otherwise appears ineligible under 9B claims
that he/she benefits from any of these
special exemptions or tolling provisions,
conoff should not routinely query INS but
should
instead place the burden on the alien to
establish the facts which would fit the alien
within the exception. 


27. Periods of unlawful presence under 9B are
not counted in the aggregate. For example,
the three-year bar of 9B1 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 U.S. (in such
circumstances, however, a consular officer
may have questions concerning the alien's
eligibility for a visa under INA 214(b),
222(g), or other 212(a) grounds). 


28. Conditional Residents: If a
conditional permanent resident fails to file
a timely petition to remove conditional
status as
required by INA 216 and 216A, the conditional
resident's status is automatically
terminated, and unlawful presence will begin
to accrue as of the date on which conditional
status expired. INS regulations allow INS
officers to consider late petitions when
the alien can establish the late filing has
for good cause. In such cases, the INS can
approve the petition retroactively, which
means that there is, in effect, no
interruption in the alien's LPR status and no
accrual of unlawful presence. If INS has
served an
alien with a notice of intent to revoke
conditional LPR status during the two-year
period, the alien continues to enjoy all the
rights and privileges of an LPR until LPR
status is terminated. 


29. Entrants Without Inspection: In
the case of EWI's, unlawful presence begins
to accrue as of the date the alien entered
the
U.S. without admission or parole. (For aliens
who entered before 4/1/97, unlawful presence
begins accruing on 4/1/97, per
para. 24 above.) 


30. Overstays/Status Violators: Like
INA 222(g) ("222(g)"), 9B applies to certain
aliens who remain in the U.S. beyond "the
period of stay authorized by the Attorney
General." As with 222(g), the interpretation
of this language can be quite
complicated. In general, the term "period of
stay authorized by the Attorney General" for
purposes of 222(g) and 9B will be
interpreted similarly. In Ref D, Department
sent guidance on recent revisions to the
interpretation of 222g, which were
prompted by the agreement of INS and the
department to conform the interpretation of
222(g) to the guidance on 9B. Without
repeating that Septel or all the prior 222(g)
guidance, Department would like to point out
the following key points as they relate
to the interpretation of unlawful presence
for 9B purposes in cases where voluntary
departure is not granted. (See Para. 31 for
the effect of a grant of voluntary
departure.): 


A . Duration of Status Cases: Although
most nonimmigrants are admitted for a
specified period of time, students, exchange
visitors, information media representatives
("I" visa holders), and holders of certain
diplomatic visas are usually admitted for
"duration of status" (D/S). An alien admitted
for "duration of status" will begin to accrue
unlawful presence only if either: 


* an Immigration Judge (IJ) finds the alien
has violated status and is
excludable/deportable/removable, or 


* the INS, in the course of adjudicating an
application for a benefit (e.g., extension of
stay or change or adjustment of status),
determines that a status violation has
occurred. 


B. Aliens Admitted Until a Date
Certain: In general, an alien admitted
until a specified date will begin to accrue
unlawful
presence either: 


* when the date on the I-94 (or any
extension) has passed, or 


* if INS or an IJ makes a finding of a status
violation, whichever comes first. 


C. Except in cases where the alien either
entered without inspection (EWI) or stayed
beyond the date specified on the I-94
(overstay), conoffs may not refuse an alien
under 9B unless INS or an IJ has made a
formal finding that the alien violated
status.
Other than in overstay and EWI cases, a
conoff's belief that a particular alien
violated status is not/not in itself a
sufficient basis
for a 9B refusal. Even if the alien admits to
an apparent status violation (other than an
overstay or EWI), that would not be a
basis for a 9B finding, absent a prior INS or
IJ finding of a status violation. On the
other hand, a finding by conoff that the
alien
entered without inspection or overstayed a
specified date on the I-94 may be a proper
basis, in and of itself, for a 9B refusal,
assuming the alien had accrued the requisite
period of unlawful presence; No prior INS or
IJ finding is required in such cases. 


D. In cases where the unlawful presence
determination is based on an INS or IJ
finding of a status violation, the clock
starts to
run from the date of the INS or IJ
determination, not/not from the date on which
the alien actually began violating status.
For
example, if an alien enters on an F visa on
September 1, 1997, drops out of school on
October 1, 1997, and fails to depart,
and if the INS subsequently makes a finding
of a status violation on, say, February 1,
1999 in connection with the alien's
request for F-1 reinstatement, the 9B clock
begins to run on February 1, 1999, not on
October 1, 1997, and the alien would
not be subject to 9B unless he remained in
the U.S. without authorization for an
additional 181 days or more after the
February
1, 1999, determination. 


31. Voluntary Departure: The following
special rules and considerations apply to
cases involving a grant of voluntary
departure
(V/D): 


A. INS has decided that a grant of voluntary
departure is "a period of stay authorized by
the attorney general," but only for 9B
purposes and not for any other purpose (i.e.,
an alien granted voluntary departure would
not be considered in authorized status
for purposes of, e.g., applying for a change,
extension, or adjustment of status). Thus,
the period between the date of the V/D
order and the date by which the alien must
depart does not/not count toward any period
of unlawful presence. However, if the
alien fails to depart by the date specified
in the V/D order, the clock starts running. 


B. A grant of voluntary departure does not
"cure" or undo any past periods of unlawful
presence which may have occurred
prior to the V/D order; a grant of V/D merely
"stops the clock" on unlawful presence. Thus,
an alien who is granted voluntary
departure and who departs prior to the date
specified in the V/D order may still be
subject to 9B, if, prior to the V/D order,
the
alien had already accrued sufficient
"unlawful presence" to trigger 9B. 


C. If an alien has been unlawfully present
for more than 180 days but less than one year
(i.e., a potential 9B1 case) and
voluntary departure is granted during that
period, post should note whether V/D was
granted in the context of removal
proceedings. If so, then the alien would not
be ineligible under 9B1, because in such a
case the alien's departure would
necessarily have occurred after commencement
of removal proceedings. (Rrecall that the
three-year bar of 9B1 does not apply
if departure occurs after removal proceedings
have begun.) It is the applicant's burden to
establish whether V/D was granted
and, if so, whether it has granted in the
context of pending removal proceedings. Post
should not need to query INS directly. 


D. As noted above, the 9B clock starts to run
(again) once the period of voluntary
departure has expired. Thus, aliens granted
voluntary departure who remain unlawfully in
the U.S. after the date on which they were
required to depart will be subject to
9B if they accrue enough (additional)
unlawful presence after expiration of the
period of voluntary departure to trigger the
ineligibility. 


Waiver Available for 9B 


32. NIV applicants who are subject to 9B are
eligible for 212(d)(3)(A) waivers. IV
applicants are eligible to apply for waivers
under 212(a)(9)(B)(v), if they are the
spouse, son, or daughter of an AMCIT or LPR.
(note that parents of AMCITs are
not/not eligible for waivers.) Under the
standard set by the statute, INS may not
grant an IV waiver of 9B unless the applicant
establishes that refusal of admission would
result in "extreme hardship" to the AMCIT or
LPR relative. 


Scope of Examination/Evidence to Consider
in 9B Cases 


33. In many cases it will be difficult to
determine whether an alien has been
unlawfully present in the U.S. and, if so,
for howlong. It is simply not practical to
require each applicant to document his/her
location and status every moment from 4/1/97
on in
order to exclude definitively the possibility
of a 9B ineligibility. Rather, our efforts
must be focused on those cases likely to
produce results. Therefore, conoffs should
not routinely undertake in-depth questioning
of applicants concerning possible
ineligibility under 9B unless, in the normal
course of processing a particular visa
application, the possibility of a previous
period
of unlawful presence becomes apparent through
otherwise routinely available information
(e.g., inspection of the passport,
answer to questions on OF- 156 or OF-230
concerning prior presence in the U.S.,
information on I-130 IV petition regarding
whereabouts and status of beneficiary, etc.) 


34. In determining whether an alien has been
unlawfully present for 9B purposes, post
should normally consider information
available from the visa application process,
post records, and the class lookout system.
(INS has advised that it may enter
lookouts on aliens who have been found by an
INS adjudicator or an IJ to have violated
status. These lookouts would
automatically pass into class.) Posts should
not make routine requests for record checks
from INS or the Department, as
arrival/departure records and records of
authorized extensions or changes of status
are not always complete or readily
accessible. 


212(a)(9)(C) ("9C"): Unlawful Entry After
Previous Violation 


(9)(c)(i)(I) 


35. INA 212(a)(9)(C)(i)(I) renders
permanently inadmissible any alien who was
unlawfully present in the U.S. for more than
a
year in the aggregate, and who subsequently
entered or attempted to enter the U.S.
without inspection. This provision primarily
affects aliens who attempt to circumvent an
ineligibility under 9B by slipping across the
border illegally. Posts should note,
however, that not everyone subject to this
provision would necessarily have been subject
to 9B. This provision allows separate
periods of unlawful presence to be added
together when calculating the period of
unlawful presence, whereas 9B does not.
Thus, an alien who was unlawfully present,
say, for three separate periods, each period
lasting five months, would not be
subject to any 9B bar (because no one period
lasted more than 180 days), but if the alien
attempted to re-enter a fourth time
without inspection, he/she would be subject
to this provision because the total unlawful
presence exceeded one year. 


36. As with 9B, periods of time prior to
April 1, 1997, do not count toward unlawful
presence for purposes of
212(a)(9)(C)(i)(i). Because the reentry or
attempted reentry without inspection must
have occurred after more than one year of
unlawful presence, and because the unlawful
presence itself must have occurred on/after
April 1, 1997, it follows that no alien
could be refused under this section unless
the illegal reentry/attempted reentry
occurred on or after April 2, 1998, repeat,
April
2, 1998. Therefore, in no case could an alien
be refused a visa under this section prior to
April 2, 1998. 


(9)(c)(i)(II) 


37. INA 212(a)(9)(C)(i)(II) renders
permanently inadmissible any alien who was
ordered removed and who subsequently
entered or attempted to enter the United
States without inspection. This provision
primarily affects deportees who attempt to
avoid a 9A refusal or denial of admission by
slipping across the border illegally. It is
broader than that, however, in that it also
covers previous deportees who had already
remained outside the U.S. for the period
required by 9A and whose entry without
inspection (EWI) or attempted EWI therefore
would not circumvent 9A. 


38. INA section 212(a)(9)(C)(i)(II) applies
to aliens previously ordered removed at any
time -- whether before, on, or after
April 1, 1997. However, for (9)(C)(i)(II) to
apply, the alien's unlawful reentry or
attempted reentry without inspection must
have occurred on or after April 1, 1997.
Thus, an alien deported prior to 4/1/97 who
attempted to reenter without inspection
on or after 4/1/97 would/would be ineligible
under this provision, whereas an alien in the
same circumstances who had
attempted reentry without inspection
prior/prior to 4/1/97 would not/not be
subject to this provision. 


39. While these rules may seem confusing,
they actually follow logically from the rules
applicable to 9A and 9B. Thus,
(9)(C)(i)(I), which is aimed primarily at
aliens seeking to circumvent a 9B
ineligibility, follows the same rule as 9B:
unlawful
presence prior to 4/1/97 does not/not count.
On the other hand, (9)(C)(i)(II), which is
aimed primarily at aliens seeking to
circumvent a 9A ineligibility, follows the
same rule as 9A: deportations prior to 4/1/97
generally do/do count (at least for
purposes of 9A2). 


40. An alien found ineligible under either
subsection of 9C may seek "consent to
reapply" for admission from the Attorney
General after he or she has been outside the
U.S. for more than 10 years. 


41. In some cases, aliens subject to 9C would
have been entered in NAILS by INS (certainly
those previously deported).
Such entries would pass into class, and post
may therefore generally rely on class checks
to identify aliens ineligible under 9C.
The class code for this ineligibility is 9CP,
to distinguish it from the former Code 9C,
relating to child abductions. 


212(a)(6)(A) and (6)(B) 


42. INA 212(a)(6)(A) ("6A") renders
inadmissible aliens present in the U.S.
without having been admitted or paroled, or
who
arrive at an unauthorized entry point. As
noted in Ref A, this provision applies only
to arriving aliens and aliens already present
in the U.S., and therefore it is not
applicable to visa applications and is not a
possible ground of visa refusal. (FYI: the
principal
effect of 6A would be to render EWI aliens
ineligible for adjustment of status. However,
INS has determined that (now
expired) INA 245(i) overrides 6A, and aliens
who benefit from "grandfathering" and can
still qualify to apply for 245(i)
adjustment are not subject to 6A.) The class
code for this ineligibility is 6AW. It is
only available for INS use. 


43. INA 212(a)(6)(B) ("6B") relates to an
alien who has failed to attend or refused to
remain at a hearing to determine the
alien's inadmissibility or deportability.
This ground of inadmissibility renders the
alien ineligible for a visa for five years
after
departure. This section applies only to
proceedings that were commenced by the filing
of a notice to appear on or after April 1,
1997. Because 6B applies only to cases where
the proceeding was commenced by a notice to
appear filed on or after 4/1/97,
and because the filing of a notice to appear
necessarily predates the hearing itself, it
follows that, for 6B to apply, the hearing
itself must also have occurred on or after
4/1/97. If proceedings commenced against the
alien prior to 4/1/97, then 6B would
not apply, even if the hearing itself
occurred on or after that date. The class
code for this ineligibility is 6BR. 


44. If posts have any questions about the
interpretation of any of the provisions
discussed above, the department
(CA/VO/L/A) will be happy to assist. 


Addendum 


Summary Table of Provisions 


Note: when referring to INA sections, letters
in lower Case are indicated by double
parentheses -- e.g., INA 212(a)(9)(A)(i)
appears as 212((a))(9)(A)((i)). 


INA Section (Class Code) Applies To: 


222((g)) NIV overstayers, whether (222)
overstay occurred before, on, or after 4/1/97 


212((a))(6)(A) not applicable to visa
applications (6AW) 


212((a))(6)(B) failure to attend immigration
(6BR) hearing which commenced with a notice
to appear filed on/after 4/1/97 


212((a))(9)(A)((i)) arriving aliens
previously (91A or 91B or 91C) ordered
removed under INA 235(b)(1) or INA 240
(removal order issued on/after 4/1/97) 


212((a))(9)(A)((ii)) other aliens previously
ordered (92A or 92B or 92C) removed, whether
the order was issued before, on,
or after 4/1/97 


212((a))(9)(B)((i))(I) aliens who voluntarily
departed (9B1) prior to commencement of
removal proceedings and after an
unlawful presence of more than 180 days but
less than one year, provided the unlawful
presence occurred on/after 4/1/97 


212((a))(9)(B)((i))(II) aliens who departed
after an (9B2) unlawful presence of one year
or more, provided the unlawful
presence occurred on/after 4/1/97 


212((a))(9)(C)((i))(I) aliens who were
unlawfully (9CP) present more than one year
in the aggregate, provided the unlawful
presence occurred on/after 4/1/97, and who
subsequently reentered/ attempted to reenter
without inspection on/after 4/2/98. 


212((a))(9)(C)((i))(II) aliens who were
previously (9CP) ordered removed, whether the
order was issued before, on, or after
4/1/97, and who subsequently reentered/
attempted to reenter without inspection
on/after 4/1/97 


@

Examples

 


The following examples illustrate some of the
above rules. Where appropriate, we have also
indicated the outcome under INA
222(g) ("222(g)"), for comparison purposes.
(If a detailed explanation of the outcome
under 222(g) is needed, please refer to
Ref D.) Unless otherwise stated, the examples
assume an alien over 18 years of age and a
time frame on/after April 1, 1997. 


212(a)(9)(A) 


A. Arriving alien denied entry and found
inadmissible and removed (excluded) by IJ on
April 1, 1997: subject to five-year bar
of 9A1. 


B. Same facts as A, but order of exclusion
issued on March 30, 1997: subject to ten-year
bar of 9A2. 


C. Alien apprehended in U.S. and deported in
1990 (previously ineligible until 1995 under
old 212(a)(6)(B)): subject to
ten-year bar of 9A2, ineligible (again) until
2000. (Note: INS may promulgate regulations
which would change the result in this
kind of case. Posts will be advised of any
changes.) This alien may seek consent to
reapply for admission and will receive
sympathetic consideration according to INS
instructions. 


D. EWI alien granted voluntary departure by
an IJ with alternate order of removal,
departs within V/D period: not subject to
9A. 


E. Alien ordered removed in 1990 but departs
on own after order issued: subject to ten-
year bar of 9A2. 


F. Arriving alien ordered removed by an INS
officer under the new summary removal
provision of INA 235(b)(1): subject to
five-year bar of 9A1. 


212(a)(9)(B) 


A. Presence prior to 4/1/97: 


(I) Alien entered without inspection ten
years ago, departed voluntarily on 9/1/97:
five months of unlawful presence accrued
(4/1/97 to 9/1/97), not subject to 9B because
unlawful presence did not exceed 180 days;
not subject to 222(g) because alien
did not enter on an NIV. 


(II) Alien entered without inspection ten
years ago, departed voluntarily on 12/1/97
(prior to commencement of removal
proceedings): eight months of unlawful
presence accrued (4/1/97 to 12/1/97), subject
to three-year bar of 9B1; not subject to
222(g). 


(III) alien entered without inspection ten
years ago, immigration proceedings commenced
11/1/97, alien granted voluntary
departure (V/D) 12/1/97 and departed after
accruing eight months of unlawful presence
(4/1/97 to 12/1/97): not subject to 9B
(three-year bar does not apply because alien
did not depart prior to commencement of
removal proceedings); not subject to
222(g). 


(IV) alien entered without inspection ten
years ago, departed 5/1/98: thirteen months
of unlawful presence accrued (4/1/97 to
5/1/98): subject to ten-year bar of 9B2; not
subject to 222(g). 


B. Other Special Rules: 


(I) Alien entered without inspection ten
years ago at age of seven, applies for visa
today at age of seventeen: no time in
unlawful
presence is taken into account because
unlawful presence was prior to age 18: not
subject to 9B; not subject to 222(g)
because prior entry was not on an NIV. 


(II) Alien entered without inspection ten
years ago, remained continuously in U.S. and
applies for adjustment under 245(i): not
subject to 9B because no departure from U.S. 


(III) Alien entered on B visa, admitted for
six months, overstayed an extra five months,
departed, returned and is granted
another six months, overstays an additional
four months (total time in U.S. 21 months,
nine of which was as an overstay): not
subject to 9B because no single period of
unlawful presence exceeded 180 days and
periods can't be aggregated; subject to
222(g), however. 


C. Alien Who Overstays Date on I-94: 


(I) Alien remains beyond date on I-94, is not
placed in removal proceedings, departs
voluntarily on his own more than 180
days and less than one year after date on I-
94: subject to three-year bar of 9B1, and to
222(g). 


(II) Same facts as (I), but alien remains one
year or more after date on I-94: subject to
ten-year bar of 9B2, and to 222(g). 


(III) Alien remains more than 180 days and
less than one year after date on I-94, is not
placed in removal proceedings, is
granted voluntary departure by INS within the
same period, and departs within V/D period:
subject to three-year bar of 9B1,
and to 222(g). 


(IV) Alien remains more than 180 days and
less than one year after date on I-94, is
placed in proceedings, is found removable
as an overstay and granted voluntary
departure by the IJ within the same period,
and departs within V/D period: not subject to
9B (three-year bar does not apply because
alien did not depart prior to commencement of
removal proceedings, and ten-year
bar does not apply because alien did not
accrue at least one year's unlawful
presence). Alien is nevertheless subject to
222(g)
because of the IJ's finding that he remained
longer than authorized. 


(V) Alien remains one year or more after date
on I-94, is subsequently placed in
proceedings and is granted voluntary
departure by the IJ, and departs within V/D
period: subject to ten-year bar of 9B2, and
to 222(g). 


D. Alien Admitted for D/S Who Violates
Status: 


(I) Alien admitted on a student visa for
duration of status, drops out of school day
after arrival, takes up unauthorized
employment, departs ten years later without
ever having been found to have violated
status by INS or an IJ: no unlawful
presence accrued, not subject to 9B. In
addition, 222(g) does not apply because there
was no formal finding of a status
violation by INS or an IJ. (see Ref D Septel
on 222(g)). 


(II) Alien admitted for duration of status,
violates status, e.g., by working without
authorization, is out of status for any
period of
time, applies for a change of status (COS),
which INS denies on the ground that alien was
out of status. Unlawful presence
begins to accrue on the date of the denial.
The alien departs voluntarily on his own
prior to commencement of removal
proceedings 180 days or less after INS
decision: not subject to 9B because alien did
not accrue more than 180 days of
unlawful presence after INS decision;
however, alien is subject to 222(g). 


(III) Same facts as (II) but alien requests
voluntary departure, which INS grants 180
days or less after the denial of COS, and
the alien departs within the time granted:
not subject to 9B because alien did not
accrue more than 180 days of unlawful
presence; however, alien is subject to
222(g). 


(IV) Same facts as (II), but INS grants V/D
more than 180 days but less than one year
after the denial of COS, and the aliendeparts
within the time granted: subject to three-
year bar of 9B1, and to 222(g). 


(V) Same facts as (II), but removal
proceedings are instituted after INS's denial
of COS, IJ agrees that alien violated status
and
grants V/D (with alternate order of removal)
180 days or less after the denial of COS: not
subject to 9B (period between INS
decision to deny COS and IJ's grant of V/D
counts as unlawful presence, but period was
less than 181 days, and grant of V/D
is considered by INS to be a period of stay
authorized by the Attorney General for 9B
purposes); alien is, however, subject to
222(g). 


(VI) Same facts as (V), but IJ issues V/D
order more than 180 days but less than one
year after INS decision: not subject to
9B (although more than 180 days of unlawful
presence accrued, three-year bar does not
apply because alien did not depart
before commencement of removal proceedings
and ten-year bar does not apply because alien
did not accrue at least one year
of unlawful presence). 222(g) applies because
INS and IJ found status violation. 


(VII) Same facts as (V), but IJ issues V/D
order one year or more after INS decision:
subject to ten-year bar of 9B2 because
one-year-plus period between INS denial of
COS and IJ grant of V/D counted as unlawful
presence. 222(g) also applies. 


(VIII) Alien admitted on student visa for
duration of status, drops out of school the
next day, takes up unauthorized
employment, stays ten years, is put in
deportation proceedings, is found to have
violated status but is simultaneously granted
voluntary departure, and departs before date
specified in V/D order: no unlawful presence
accrued, not subject to 9B because
"unlawful presence" clock did not start to
run until IJ finding and has immediately
suspended by V/D order. 222(g) applies,
however. 


(IX) Same facts as (VIII), except alien does
not depart until seven months after the date
specified in V/D order: not subject to
9B (unlawful presence of seven months
accrued, but three-year bar inapplicable
because departure occurred after
commencement of removal proceedings). 222(g)
applies, however. 


E. Alien Admitted Until Date Certain,
Violates Status: 


(I) Alien enters on a B visa, admitted for
six months, takes up unauthorized employment
day of arrival, remains in U.S. five
months after date on I-94, and departs after
having worked illegally in U.S. for eleven
months: five months of unlawful presence
accrued, not subject to 9B, but subject to
222(g). 


(II) Alien enters on H-1, admitted for two
years, quits job day of arrival and works
without authorization for new employer(s)
for a year and a half, applies for extension
of stay, INS finds status violation (before
I-94 has expired) and denies application,
alien departs on his own one month after INS
finding: one month of unlawful presence
accrued (measured from date of INS
finding), not subject to 9B, but subject to
222(g). 


(III) same facts as (II), but INS finding of
status violation is not made until one year
after I-94 has expired and alien departs
one month later: unlawful presence of
thirteen months accrued (measured from
expiration of I-94), subject to ten-year bar
of
9B2, and to 222(g). 


(IV) Alien admitted with a date-certain I-94,
violates status, e.g., by working without
authorization, and, prior to the expiration
of I-94, applies for an extension of stay or
a change of status, which INS denies because
of status violation. The period of
authorized stay ends and unlawful presence
begins to accrue on date I-94 expires or date
of INS denial, whichever comes first.
(Alien is not covered by tolling provisions
in 212(a)(9)(B)(iv) because of unauthorized
employment.) Alien requests voluntary
departure, which INS grants 180 days or less
after unlawful presence begins to accrue, and
the alien departs within the time
granted: not subject to 9B, but subject to
222(g). 


(V) Same facts as (IV), but INS grants V/D
more than 180 days but less than one year
after unlawful presence begins to
accrue, and the alien departs within the time
granted: subject to three-year bar of 9B, and
to 222(g). 


(VI) Same facts as (IV), but INS grants V/D
one year or more after unlawful presence
begins to accrue: subject to ten-year
bar of 9B2, and to 222(g). 


(VII) Same facts as (IV), but removal
proceedings are instituted and the IJ agrees
with INS finding that alien violated status
but
grants V/D (with alternate order of removal)
more than 180 days but less than one year
after unlawful presence begins to
accrue: not subject to 9B (no three-year bar
because departure occurred after removal
proceedings had begun), but 222(g)
applies because both INS and the IJ found a
status violation. 


(VIII) Same facts as (VII), but IJ grants V/D
one year or more after unlawful presence
begins to accrue: subject to ten-year
bar of 9B2, and to 222(g). 


(IX) Alien admitted with a date-certain I-94
and, prior to expiration of the authorized
time, is placed in removal proceedings for
violating status, e.g., by working without
authorization, IJ determines status violation
occurred and grants V/D (with an alternate
order of removal) prior to or within 180 days
after expiration of I-94, alien departs
within V/D period: not subject to 9B
because alien avoided accrual of unlawful
presence by departing within voluntary
departure period; however, 222(g) applies
because IJ found a status violation. 


(X) Same facts as (IX), but IJ grants V/D
between 180 days and one year after
expiration of I-94: not subject to 9B
(three-year bar does not apply because
departure has after commencement of removal
proceedings). However, 222(g) applies
because IJ found a status violation. 


(XI) Same facts as (IX), but IJ grants V/D
one year or more after expiration of I-94:
subject to ten-year bar of 9B2, and to
222(g). 


F. Unlawfully Present Aliens Who Are
Removed: 


(I) Alien admitted on B visa until 4/1/97,
overstays and is subsequently removed on
12/1/97: unlawful presence of eight months
accrued but alien not subject to three-year
bar of 9B1 because departure was not
voluntary and occurred after commencement
of removal proceedings (but alien is subject
to 222(g) and to the ten-year bar of 9A2 for
aliens previously removed). 


(II) Same as (I), except alien is not removed
until 4/1/98: unlawful presence of one year
accrued, alien subject to ten-year bar
of 9B2 (even though departure was
involuntary). 222(g) and ten-year bar of 9A2
also apply. 


212(a)(9)(C) 


A. Alien enters on B visa, overstays by five
months (beginning on or after 4/1/97),
departs, returns and overstays by eight
months, departs and attempts to reenter
without inspection: total unlawful presence
of thirteen months prior to attempted illegal
reentry, alien subject to permanent bar of
(9)(C)(i)(I) (this section allows aggregation
of periods of unlawful presence).
(Although bar is permanent, alien can request
consent to reapply after ten years outside
the U.S.) Also subject to 222(g). 


B. Same facts as A, but overstays occurred
prior to 4/1/97: not subject to (9)(C)(i)(I),
but subject to 222(g). 


C. Alien enters without inspection in 1990,
placed in removal proceedings, departs U.S.
voluntarily March 1, 1998, prior to
order or removal, unsuccessfully attempts to
reenter illegally the following day: not
subject to (9)(C)(i)(I) because accrued only
eleven months of unlawful presence (4/1/97 to
3/1/98). (Also not subject to (9)(C)(i)(II)
because departed voluntarily and not
pursuant to order of removal.) (Also not
subject to 9B because 3/1/98 departure was
after commencement of removal
proceedings). (Also not subject to 222(g)
because alien entered without inspection, not
on an NIV.) 


D. EWI alien ordered removed prior to 4/1/97,
attempts to reenter without inspection on
4/1/97: subject to permanent bar of
(9)(C)(i)(II); not subject to 222(g) because
alien entered without inspection, not on an
NIV. 


E. Same facts as D, but attempted entry
without inspection occurs on 3/31/97: not
subject to (9)(C)(i)(II); not subject to
222(g) because no prior entry on NIV. 


Madeleine Albright 

@

© Copyright Law Offices of Jonathan Liang 2000. All rights reserved.