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Two Unpublished BIA Decisions on Waiver Eligibility

By Charles Wheeler

The BIA has issued two recent unpublished decisions shedding some further light on how the agency interprets eligibility for the unlawful presence and the prior deportation waiver.  Both involve the effect of the person’s presence in the United States and whether that time can count toward the running of the three-year bar (unlawful presence) and the ten-year bar (prior order of removal).  We stress that these two decisions are unpublished and thus cannot be used as precedent in other cases.

In the first case, Matter of Jose Armando Cruz, A-087-241-021, the respondent had accrued more than 180 days of unlawful presence before departing the country voluntarily in 1997.  Two years later he returned to the United States by entering without inspection and remained here.  He filed for adjustment of status under 245(i) based on an approved third preference petition, which was granted by an immigration judge.  On appeal, the government argued that Mr. Cruz was barred under 212(a)(9)(B) for having not remained outside the country for the required three years or having not obtained a waiver. The BIA looked at the statutory language and concluded that Congress intended for the bar to be “temporary,” in contrast with 212(a)(9)(C), which calls for a “permanent” bar.  The respondent’s illegal reentry and presence in the United States did not make him permanently barred, nor did it prevent the running of the three-year bar period.  Given that the Mr. Cruz “sought admission” through his adjustment application after the three-year period had run, he was no longer inadmissible under 212(a)(9)(B).

The second case applied a similar reasoning to a similar fact pattern, only the ground of inadmissibility was the ten-year bar for prior removal.  In that case, the respondent had been ordered removed from the United States in 2002 and had subsequently left the country.  In 2006 he was admitted on a tourist visa that he had obtained through fraud, having failed to reveal his priori removal. He subsequently married a U.S. citizen and applied for adjustment of status.  The immigration judge found him inadmissible based on 212(a)(9)(A) for having not remained outside the United States for the required ten-year period or having not obtained a waiver, in addition to other grounds. But the judge found that the respondent needed to file a Form I-212 to address the ten-year bar under 212(a)(9)(A), which could only be adjudicated by the USCIS, and that even the granting of such a waiver would not cure his inadmissibility.

The BIA again distinguished the ten-year bar under 212(a)(9)(A) from the permanent bar under 212(a)(9)(C) and concluded that “there is nothing in the Act to indicate that the 10-year period between the time of removal and the time of seeking admission need be spent outside the United States.”  Since the respondent was applying for adjustment of status more than ten years after the order of removal and departure from the country, the bar no longer applied.

We caution practitioners against relying too heavily on these two unprecedented decisions.  The BIA has admitted that the statutory language is ambiguous.  It is still the USCIS position that the ten-year period for prior removal and the three-year period for unlawful presence must be spent outside the country.  We look forward to a published BIA decision that would finally resolve this ambiguity.