New Development In Lifetime Bar Waiver

By Robert L. Reeves & Nancy E. Miller

One would think that a law that has been in effect since April 1, 1997 would be well settled and no longer subject to interpretation.  But one who thought that would be wrong.  In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) which became effective (with some exceptions) on April 1, 1997.  The Act added a new ground of inadmissibility applicable to aliens who are unlawfully present in the United States after previous immigration violation.

Under this section, codified as §212(a)(9)(C), any alien who [(i)(I)] has been unlawfully present in the United States for an aggregate period of more than 1 year, or [(i)(II)] has been ordered removed and who enters or attempts to reenter the United States without being admitted is inadmissible. Plainly speaking, this means that an alien who has been in the U.S. without status for a combined period of more than 1 year or who has been ordered removed from the U.S. and who leaves the country and enters or tries to enter without government permission is barred from reentry.  This bar is permanent. 
The bar does not apply to an alien who is a VAWA (Violence Against Women Act) self-petitioner if there is a connection between the alien’s battering or subjection to extreme cruelty and the alien’s removal, departure from the U.S., reentry or reentries into the U.S. or attempted reentry into the U.S.
One who is subject to the bar may apply for a waiver provided they can show that their United States citizen or lawful permanent resident parent or spouse who suffer extreme hardship if they were not permitted to reenter the United States.  However, this waiver may not be applied for until the alien has been outside the United States for a period of ten years and the waiver must be granted before the alien may reenter. 

While much of this is not good news, it does not seem complex.  So why have the courts given so much attention to the statute?  The answer is that numerous questions have been raised regarding the correct interpretation of various aspects of the law.

Initially, the Ninth Circuit Court of Appeals had held that immigrants who were grandfathered under §245(i) could apply for adjustment notwithstanding the fact that they were subject to the lifetime bar.  However, in Garfias-Rodriguez v. Holder, the court held that aliens may not adjust their status under §245(i) if they are inadmissible under §212(a)(9)(C)(i)(I) [aggregate unlawful presence].  In Gonzales v. Department of Homeland Security, the court held that aliens may not adjust their status under §245(i) if they are inadmissible under §212(a)(9)(C)(i)(II) [prior order of removal].  The court also held (in both Garfias-Rodriguez v. Holder and Morales-Izquierdo v. DHS)  that  these holdings may be applied retroactively.
The Ninth Circuit has also looked at the issue of whether the unlawful presence or deportation/removal order and subsequent reentries can be applied to events that occurred before April 1, 1997.  In June of 2011, the Ninth Circuit issued a decision that held that the lifetime bar could be applied to those who had a deportation order issued prior to 4/1/97 and to those who were in the U.S. unlawfully prior to 4/1/97.  However, the court recently granted rehearing in that case and withdrew the prior decision.  In Carrillo de Palacsios (December 1, 2011), the court held that Maria Matilde Carrillo de Palacios was inadmissible because she had been ordered deported in 1984 and had subsequently reentered illegally in 1992 and 1997.  The court confirmed that the alien must wait outside the United States for the entire ten year period before being eligible to apply for the waiver.
However, the court specifically withdrew its prior holding that the lifetime bar applies to unlawful presence prior to 4/1/97.  The court stated that “we need not address arguments regarding [§212(a)(9)(C)(i)(I) – unlawful presence] and we express no opinion regarding the BIA’s analysis of that provision” [which had, in an unpublished and so not binding decision, applied the bar to unlawful presence prior to 4/1/97].

This decision does not mean that the lifetime bar for unlawful presence will never be applied to situations where one had been in the U.S. out of status prior to 4/1/97.  It just means that, for today, the law does not require such a conclusion.  Attempting to reenter the United States after either a period of unlawful presence or a prior deportation order can have draconian results.  For that reason, one who has had any prior period of unlawful status or who has ever been subject to deportation or removal should always consult with a knowledgeable and experienced immigration attorney before attempting reentry.