By: Attys. Robert L. Reeves and Love Macione

In a decision that will affect thousands of Filipinos living in the United States after having been ordered deported, the Ninth Circuit recently rejected the United States Citizenship and Immigration Service’s (“USCIS”) position that foreign nationals previously ordered deported or removed may only apply for permission to be readmitted to the United States while abroad. The August 13, 2004 decision in Perez-Gonzalez v. Ashcroft held that such individuals may apply for permission to reapply for admission while in the United States. This decision, long overdue, verifies that which we have argued for years: that the government’s position was unequivocally wrong.

Generally, an individual who has been ordered deported or removed is not allowed to re-apply for admission to the United States for a period of five to twenty years, depending upon the circumstances of the case, unless granted permission to do so by the Attorney General. In order to get the permission to be re-admitted to the United States, one must file a Form I-212, Application for Permission to Reapply for Admission. The criteria used by the government in adjudicating these applications include: moral character, recency of deportation, need for the applicant’s services in the United States, applicant’s contention that she did not know s/he was deported, and length of time applicant had been in the United States. Matter of Lee, 17 I&N Dec. 275 (Comm. 1978).

Prior to Perez-Gonzalez, The local USCIS District Offices routinely rejected Forms I-212 filed by individuals still in the United States on the basis that such applications could only be filed from abroad. It is common knowledge among the immigrant communities that many of the District Offices and U.S. consulates, including Manila, routinely deny these waivers, leaving the applicant stranded abroad for years. For this reason, many individuals simply remained in the U.S. However, because of the government’s policy, these individuals, who would be eligible for adjustment of status except for the prior deportation or removal order, could not apply for this relief. To do so would generally lead to an arrest at the adjustment interview, a reinstatement of the prior order and removal from the U.S. after weeks and even months of detention. Thus, people who chose to stay with their families or who later re-entered after a removal order were forced to live as fugitives with no hope of legalizing their status in the United States.

The Court in Perez-Gonzalez agreed with the position held by immigration practitioners for years: that the government’s claim that the Form I-212 waiver is only available to aliens outside the U.S. contradicts the text of its own regulations, which explicitly states that such waivers are available to aliens within the U. S. who are seeking adjustment of status. One regulation states that the application must be filed with “the district director having jurisdiction over the place where the alien resides.” 8 C.F. R. § 212.2(e). Another states “(i)f the applicant is physically present in the United States but is ineligible to apply for adjustment of status, he or she must file the application with the district director having jurisdiction over his or her place of residence.” 8 C.F.R. § 212.2(g). In light of such clear directives, the government’s position is mindboggling.

Although the Perez-Gonzalez decision clears the way for many individuals to seek relief without having to leave the U.S., it is imperative that they retain a knowledgeable immigration attorney prior to submitting any applications. The District Offices in the Ninth Circuit, including California, must now accept these applications, but it remains entirely within the District Director’s jurisidiction whether or not to grant the waivers. The preparation of a strong case by a good attorney will be the deciding factor in whether one finally obtains residence or whether one throws this opportunity away.