As a general rule, one who has been granted voluntary departure by the immigration court or ordered deported or removed from the United States, must present proof to the INS that one has left the United States. This holds true even if one is in the United States and has a basis to adjust status. There are, of course, exceptions to the rule. These exceptions are: an order of exclusion, an order of deportation prior to May 21, 1995, or a grant of voluntary departure followed by timely departure. If one falls within the group of exceptions to the rule, one can adjust status to that of lawful permanent residence if there is a legal basis to do so. In all other cases, persons who overstayed grants of voluntary departure or were deported and never left, need to prove that they remained outside the United States for 5 or 10 years and in some cases 20 years. This lengthy period of time spent outside the United States may be shortened if one is granted permission to reapply for admission to the United States. An application to reapply for admission after having been deported is known as an I-212.
Deportation/Removal refers to the physical act of leaving the United States. Thus, one who has never left the United States after having been ordered to do so, has not been deported as a matter of law. While one may apply for an I-212 if they still remain in the United States, an approved application will have no effect unless the applicant leaves the United States to process the immigrant visa at a consulate abroad. When one leaves to consular process, that person will normally become subject to the 3 or 10 year bar depending on the amount of time one has been “unlawfully present” in the United States. Put simply, if one leaves the United States after having been out of status 6 months to 1 year, the bar is 3 years; if out of status for more than 1 year, the bar is 10 years. Since the law of unlawful presence was made effective as of April 1, 1997, time spent out of status before hand is not taken into account. It should be noted that time spent in immigration proceedings before the immigration court is not a form of authorized stay in the United States, unless it involves a non-frivolous application for asylum and/or the alien is granted voluntary departure and timely leaves the United States.
§241(a)(5) of the Immigration and Nationality Act provides that if an alien has reentered the United States illegally after having been removed or having departed voluntarily, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed. And, the alien is not eligible and may not apply for any relief under the Immigration and Nationality Act (except in some circumstances, withholding of removal). If the alien was both deported and re-entered the United States prior to September 30, 1996 and is later apprehended, the INS must seek to reinstate the prior order by the filing of new charges in the immigration court. This only applies to immigration courts within the Ninth Circuit of the United States, namely: California, Oregon, Washington, Nevada, Arizona, Montana, Colorado and Wyoming. Once in court, the alien may file an I-212 which the immigration judge can approve, retroactively, and the illegally re-entry may be cured. If the illegal re-entry occurs after
September 30, 1996, there is no relief before the court and the alien must consular process.
Similarly, §240B(d) of the Immigration and Nationality Act provides that if an alien is permitted the privilege of voluntary departure from the United States and fails to timely do so, the alien is subject to a minimum fine of $1,000 and a maximum of $5,000. Likewise, failure to timely depart after being granted permission to do so, renders the alien ineligible for relief for a period of 10 years. In some cases, the alien may obtain a retroactive extension of their original voluntary departure grant. If this extension is granted and the alien has a basis to adjust status, the alien may pursue such relief if able to appear before an immigration judge. Otherwise, even with an extension of the original grant of voluntary departure, the alien may still have to leave the United States.
If you or a loved one has appeared before an immigration judge and your case is no longer pending, you must be very careful. If you have a basis to adjust your status in the United States, you may wish to pursue it, but you may have to consider consular processing. In any event, you should consider and evaluate all of your options.