Issues involving unlawful presence often arise along with issues involving prior removal and issues involving improper documentation.
3B Am. Jur. 2d Aliens and Citizens §§ 1465-1468 Aliens Previously Removed
Extreme Hardship Suspending Deportation of Alien, 35 Am. Jur. Proof of Facts 2d 459.
West's Key Number Digest: Aliens k46, k53.4.
Corp. Jur. 2d "Aliens"
USCIS form I-212 Application for Permission to reapply for admission into the United States After deportation or removal is necessary when an individual has been removed from the U.S. already as a prerequisite to their visa application.
Individuals seeking immigration relief are often unsure of exactly when and where they entered, or attempted to enter, the U.S. and where they were in the U.S. at any given time. Some individuals have tried to enter the U.S. numerous times and been turned back at the border, or entered the U.S. but only remained a few days or hours, and over time these memories of exactly when and where and how long will fade. It is particularly important to know whether an individual actually entered the U.S. or was turned back at the border, whether an individual left under a 'voluntary departure,' whether an individual was processed and finger prints were taken, and whether an individual was in removal proceedings or failed to attend removal proceedings. These details about whether an individual really entered the U.S. and under what circumstances the individual departed the U.S. might have significant legal significance relating to grounds for inadmissibility and waivers. Individuals seeking immigration relief might not really understand or remember these subtle legal distinctions, they are more likely to only understand they were forced to go home. Often, it is a good idea to run a background check for all government records on an individual, with his or her informed consent, to fill in the gaps that will likely exist in an individual's memory and to know the legal effect of the circumstances of his or her departure. Running a background check ensures that all relevant information is as complete and accurate as possible so that no potential grounds of inadmissibility or defenses will be over-looked or omitted accidentally and to ensure that any required disclosures are accurate because it would be very prejudicial to an individual's application to accidentally misscharacterize the circumstances of his or her entry into the U.S. or departure from the U.S.
General Rule:
Waivers:
8 U.S.C. §1182(d) a waiver of inadmissibility may be granted for victims of severe trafficking in persons, if it is in the national interest, and if the inadmissibility was caused by or incident to the trafficking, except for inadmissibility due to security related grounds, international child abduction, or former citizens who renounced citizenship to avoid taxes. Cross reference 8 U.S.C. § 1101(a)(15)(T) for criteria to identify victims of human trafficking.
Also, under 8 U.S.C. § 1182(d) any grounds of inadmissibility, except participation in Nazi persecutions or genocide, may be waived if the alien is a non-immigrant witness with information about a crime or terrorism.
Exceptions:
Under 8 C.F.R. § 212.2, an alien who has been deported or removed from the U.S. is inadmissible for a certain number of years, as specified in the statute, and lists some exceptions; if the alien then chooses to apply for another visa he or she must submit proof that he or she has remained outside of the U.S. for the time period required by the statute.
22 C.F.R. §§ 40.91-40.93 apply to previously removed aliens and provide for waivers and exceptions.
Waivers for victims:
Title 8 C.F.R. § 212 provides for applications for victims of trafficking and other crimes.
*Cases before 1956, unless they are Supreme Court Cases, are excluded.
Carillo de Palacios v. Holder, 708 F.3d 1066 (9th Cir. 2013) (holding alien was inadmissible for adjusted status due to prior removal and unlawful re-entry).
O'Neill v. Cook, 828 F.Supp.2d 731 (D. Del. 2011) (holding alien who had been deported and fraudulently re-entered the U.S. and was deported again was inadmissible).
Sarango v. Atty. Gen., 651 F.3d 380 (3rd Cir. 2011) (holding alien inadmissible due to prior deportation, alien cannot seek permission to re-apply for admission to the U.S. retroactively).
Manuel-Miguel v. Holder, 397 Fed.Appx. 306 (9th Cir. 2010) (holding alien inadmissible after prior removal due to failure to remain outside the U.S. for 10 years).
Corona-Mendez v. Holder, 593 F.3d 1143 (9th Cir. 2010) (holding BIA was unable to grant nunc pro trunc permission for re-entry because alien was inadmissible for several reasons, explaining scope of BIA authority to grant permission for re-entry).
Delgado v. Mukasey, 516 F.3d 65 (2nd Cir. 2008) (holding alien who is inadmissible due to prior removal must wait 10 years before requesting permission to reapply while outside the U.S.).
Valdez-Gaona v. I.N.S., 817 F.2d 1164 (5th Cir. 1987) (holding alien previously removed was ineligible to re-apply for admission after only 5 years without consent of the Attorney General).
Garay v. I.N.S., 620 F.Supp. 11 (N.D. Ca. 1985) (discussing factors considered in application for permission to re-apply for admission to the U.S., and holding few of these factors were in petitioner's favor).
Estrada-Figueroa v. Nelson, 611 F.Supp. 576 (S.D. Ca. 1985) (holding 8 U.S.C. § 1182(a)(17) assumes alien previously deported had not returned to U.S. illegally).
Jaimez-Revolla v. Bell, 598 F.2d 243 (D.D.C. 1979) (holding denial of alien's application for permission to re-apply was not an abuse of discretion).
Reyes-Cerna v. I.N.S., 345 F.Supp. 1348 (N.D. Ill. 1972) (holding alien deported on numerous occasions was not entitled to permission to apply for admission after deportation even though he had married a U.S. citizen).
De Vargas v. I.N.S., 409 F.2d 335 (5th Cir. 1968) (holding restriction on aliens previously deported was intended as a "qualitative restriction" on immigration).
Mrvica v. Esperdy, 376 U.S. 560 (1964) (holding statute providing that aliens ordered deported who leave the U.S. are lawfully deported was intended to exclude deported aliens from re-admission).
Castillo-Avalos v. Gonzales, 136 Fed. Appx. 629 (5th Cir. 2005) (holding congress made a rational distinction between aliens who have entered the U.S illegally many times compared to only once and the statute did not violate equal protection).
