BIA addresses exception to EWI inadmissibility for victims of abuse | CLINIC

BIA addresses exception to EWI inadmissibility for victims of abuse

Susan Schreiber

Under INA Sec. 212(a)(6)(A)(i), persons who are present in the United States “without admission or parole” are inadmissible; this section of the law is what makes those individuals who entered without inspection, or “EWI”, inadmissible. By its express terms, however, the statute does not apply to certain battered women and children who can show a substantial connection between the battery or extreme cruelty they suffered and their unlawful entry into the United States. Although this section of the law has been in effect for over twenty years, the reach of the statutory exception was addressed for the first time in Matter of Pangan-Sis, 27 I&N Dec. 130 (BIA 2017), a recent BIA decision.

At issue in Pangan-Sis was the applicability of this statutory exception to inadmissibility to a Guatemalan national who fled domestic abuse in her home country. As stated in the statute, INA Sec. 212(a)(6)(A) inadmissibility does NOT apply where:

(I) the alien is a VAWA self-petitioner;

(II) (a) the alien has been battered or subjected to extreme cruelty by a spouse or parent, or by a member of the spouse’s or parent’s family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty, or

     (b) the alien’s child has been battered or subjected to extreme cruelty by a spouse or parent of the alien (without the active participation of the alien in the battery or cruelty) or by a member of the spouse’s or parent’s family residing in the same household as the alien when the spouse or parent consented to or acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty, and

(III) there was a substantial connection between the battery or cruelty described in subclause (I) or (II) and the alien’s unlawful entry into the United States.

Based on this text, counsel for  Pangan-Sis’ argued  that the language of the statutory exception is ambiguous but that clause III appears to allow the exception to apply either to a VAWA self-petitioner as referenced in Clause I or an abused spouse, son or daughter or child (Clause II) where the abuse is connected to an individual’s unlawful entry. The immigration judge agreed, leading to an appeal by DHS to the BIA to decide whether all three clauses of the statutory exception must be satisfied for the exception to apply. 

In approaching this issue, the Board first looked at the plain meaning of the statute and concurred with the determination that the statutory language is ambiguous. Turning next to legislative history, starting with the enactment of the Violence Against Women Act in 1994, the Board concluded that the legislative purpose of this statutory exception is to prevent inadmissibility under INA Sec. 212(a)(6)(A) from being used to disqualify a VAWA self-petitioner from adjusting her status. In the Board’s view, Congress could not have intended the exception to apply to those, like the respondent, who only satisfied Clause II and III of the exception because they would not be removable for entering the U.S. without inspection but would also have no legal status in the United States. As a result of this decision, all three subclauses, including subclause (I) requiring VAWA self-petitioner status, must be satisfied to qualify for the exception to EWI inadmissibility under INA Sec. 212(a)(6)(A)(ii).