Inadmissibility due to unlawful presence is a very broad topic, so this guide will focus on the situations most likely to affect victims of trafficking and other crimes. Situations involving unlawful presence include: entering the U.S. without admission or parole, failure to attend removal proceedings, fraud or misrepresentation, stowaways, alien smugglers (smuggling other people) (for smuggling drugs see the tab for criminal acts), subject to a civil penalty, and student visa abusers. Violation of documentation requirements is actually in a separate section, but it is so closely related to unlawful presence and the two fact patterns are so likely to occur together that this guide discusses both here. This guide focuses mostly on unlawful entry into the U.S., alien smuggling, stowaways, and fraud or misrepresentation because these are more common obstacles to immigration relief for victims of trafficking or other crimes.
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 truned 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 detailes 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 understant 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 gronuds 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 mischaracterize the circumstances of his or her entry into the U.S. or departure from the U.S.
Unlawful Entry General Rule:
Under 8 U.S.C. § 1182(a)(6) aliens who are unlawfully present are generally inadmissible. Cross Reference 8 U.S.C. § 1101(a)(13)(A) defining "admitted" and "admission" and providing that lawful entry into the U.S. requires inspection and authorization by an immigration officer.
However, 8 U.S.C. § 1182(a)(6) provides an exception for battered women and children who establish they are VAWA self-petitioners, the alien suffered extreme cruelty, and there was a substantial connection between the battery or cruelty and the alien's unlawful entry into the U.S.
Under 8 U.S.C. § 1182(a)(6) aliens who fail to attend removal proceedings are inadmissible for 5 years.
Under 8 U.S.C. § 1182(a)(6) aliens who seek to enter the U.S. or obtain any other immigration benefit through fraud or wilful misrepresentation of a material fact are inadmissible.
While individuals who make false claims of U.S. citizenship are normally inadmissible under 8 U.S.C. § 1182(a)(6), in some circumstances, under 8 U.S.C. § 1182(a)(6) an alien who makes a false claim of U.S. citizenship is not inadmissible if the individual's parents are or were citizens, the individual resided in the U.S. permanently by age 16, and the individual reasonably believed making such a representation would not cause him or her to become inadmissible.
Under 8 U.S.C. § 1182(a)(6) stowaways are always inadmissible.
Under 8 U.S.C. § 1182(a)(6) individuals who have ever knowingly 'encouraged, induced, assisted, abetted, or aided' anyone else to enter the U.S. illegally is inadmissible.
Improper Documentation General Rule: 8 U.S.C. § 1182(a)(7), provides that both immigrants and non-immigrants who attempt to enter or re-enter the U.S. without possessing proper documentation are inadmissible.
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. Cross reference 8 U.S.C. § 1101(a)(12(U) and 8 U.S.C. § 1101(a)(15)(S) for criteria for alien crime victims and alien witnesses.
Under 8 U.S.C. § 1182(i) certain family members who are inadmissible due to fraud or wilful misrepresentations may qualify for a waiver.
Under 8 U.S.C. § 1182(i) a battered spouse or child may qualify for a waiver of inadmissibility due to fraud or wilful misrepresentations.
However, under 8 U.S.C. § 1182(a)(6) individuals who made false claims of U.S. citizenship are not eligible for waivers.
Under 8 U.S.C. § 1182(d) individuals who are inadmissible due to alien smuggling may qualify for a waiver to promote family unity and humanitarian purposes allowing waivers for aliens who smuggled only certain close family members (not anyone else), and when removal would cause an extreme hardship on the alien or certain close family members who are citizens or lawful permanent residents.
Under 8 U.S.C. § 1182(a)(9) inadmissibility due to unlawful presence may be waived if it would cause their spouse or parent who is a citizen or lawful permanent resident extreme hardship.
General Rule Unlawful Presence: Title 22 C.F.R. § 40 applies to unlawful entry and immigration violations in general.
Waivers for victims:
Title 8 C.F.R. § 212 provides for applications for victims of trafficking and other crimes.
