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Unlawful Presence and the Permanent Bar: Palacios Decision Amended

By Debbie Smith

On December 1, 2011, the 9th Circuit Court of Appeals amended its June 2011 decision in  Palacios and eliminated its earlier holding that unlawful presence in the U.S. before April 1, 1997 must be counted for purposes of the “permanent” bar.  In its amended opinion, Carrillo de Palacios v. Holder, No. 09-72059 (9th Circuit December 1, 2011), the court backed away from its earlier conclusion that unlawful presence accumulated prior April 1, 1997 in conjunction with a reentry to the U.S. after April 1, 1997 made a person permanently inadmissible under INA § 212(a)(9)(C)(i)(I).  Following the amended 9th Circuit decision, unlawful presence can only be accrued as of, but not before, April 1, 1997 for the permanent bar purposes. The amended decision returns 9th Circuit law to that which had been in effect for more than 14 years.

The new Palacios decision reinstates a USCIS and Department of Date (DOS) policy regarding the pre-April 1997 accrual of unlawful presence.  In the memo issued by Paul Virtue on June 17, 1997, immigration officers were instructed “No period of unlawful presence in the United States prior to April 1, 1997, is considered for purposes of applying section 212(a)(C)(i)(I) of the Act.”  This USCIS policy was reaffirmed in 2009 by another USCIS memo, Donald Neufeld, “Consolidation of Guidance Concerning Unlawful Presence” (May 6, 2009).  Similarly, a November 1996 DOS cable summarizing the admissibility provisions of IIRIRA, specifically 212(a)(9)(C), cautioned that “[u]nlawful presence prior to the effective date of Title III-A of Pub. L. 104-208 (April 1, 1997) shall not be counted for purposes of this provision.” “R 200415Z NOV 96, FM SecState WashDC, Cable to All diplomatic and Consular Posts.” 

The new Palacios opinion was in response to a petition for rehearing of the court’s decision. An amicus brief by the American Immigration Council, the National Immigration Project of the National Lawyers Guild, and the Northwest Immigrant Rights Project also urged the court to reconsider its decision because it was incompatible with established retroactivity principles and unfairly prejudiced those who departed the U.S. prior to the effective date of IIRIRA. In light of these challenges, the court ultimately amended it prior holding and removed the language regarding pre-April 1, 1997 unlawful presence. 

The Palacios decision and the Judulang v. Holder case, also digested in this issue, remind us of the importance of strategically pursuing and appealing decisions that negatively impact immigrants.  CLINIC is the proud co-filer, along with World Relief, of an amicus brief written by Ira Kurzban in Judulang v. Holder.  In Judulang, the Supreme Court unanimously overturned a 2005 BIA decision, Matter of Blake, declaring that the BIA’s rule was arbitrary, capricious and no more reliable than tossing a coin in the air.  Using the “rationale” established in Matter of Blake, untold immigrants, including legal permanent residents, were deported.  Both Palacios and Judulang demonstrate that careful and persistent challenges to unfair rules can result in improvements in our immigration laws.