43.1 General.

(a) Background .

Under section 212(a)(9) of the Act, an alien who falls with certain classes of aliens may be barred from applying for admission to the U.S. unless he or she first obtains consent from the Attorney General to do so. For our purposes, the Attorney General's authority is vested in USCIS. The process for seeking such consent requires the alien to file Form I-212, Application for Permission to Reapply for Admission Into the United States After Deportation or Removal, with the requisite fee. When consent to reapp ly is granted, the grant is permanent and applies to any prior exclusions, deportations and removals; it does not affect any such actions against that alien occurring after the grant. The alien may seek consent to reapply to overcome inadmissibility under either section 212(a)(9)(A) of the Act, or section 212(a)(9)(C) of the Act. The provisions under which the alien is inadmissible, and the threshold criteria for seeking consent to reapply, are as follows:

(1) Under section 212(a)(9)(A) of the Act, an alien may not return to the U.S., for any reason, for a specified period of time without the express consent of USCIS (under section 212(a)(9)(A)(iii) of the Act) if such alien:

· Was removed from the U.S. as an inadmissible alien;

· Was removed from the U.S. as a deportable alien;

· Was removed from the U.S. under any other section of law;

· Was excluded and deported from the U.S. (pre-April 1997);

· Was arrested and deported from the U.S. (pre-April 1997);or

· Departed from the U.S. while under an outstanding Order of Removal.

The period of time during which the alien is barred from returning depends upon the grounds of removal and other factors (see Appendix 43-1 for a list of the bars to admission following exclusion, deportation or removal).

(2) Under section 212(a)(9)(C) of the Act, an alien who enters the U.S. without being admitted (i.e., EWIs), or attempts to enter the U.S. without being admitted (i.e., tries to EWI) is inadmissible if he or she:

· Had been unlawfully present in the U.S. for more than one year in the aggregate since April 1, 1997 (i.e., if the total amount of unlawful time since April 1, 1997 amount to 366 or more days); or

· Had been ordered removed under section 235(b)(1) (expedited removal), section 240 (regular removal) or any other provision of law.

Such person can only overcome this ground of inadmissibility under one of two conditions:

· More than 10 years have passed since his or last departure from the U.S. AND he or she has applied for and been granted (as a matter of discretion) by USCIS) consent to reapply under section 212(a)(9)(C)(ii) of the Act; or

· He or she is granted (in the discretion of USCIS ) a waiver of inadmissibility under section 212(a)(9)(C)(ii) of the Act because he or she:

– qualifies as a self-petitioner under the domestic violence provisions of paragraphs (iii), (iv), or (v) of section 204(a)(1)(A) of the Act or paragraphs (ii), (iii), or (iv) of section 204(a)(1)(B) of the Act; and

– establishes a connection between his or her having been battered or subjected to extreme cruelty and either his or her removal or departure from the U.S. or his or her reentry(ies) or attempted reentry into the U.S.

Note 1:

This domestic violence exception does not require any particular waiting period between the time of the removal and the approval of the waiver. The alien could even apply for waiver in advance of his or her departure from the U.S. (see paragraph (d)).

Note 2:

Even though the statute refers to the domestic violence exception as a “waiver” instead of a “consent to reapply,” the forms, fees, processes, and discretionary criteria involved for both are the same (although the statutory threshold criteria are obviously different), and both are discussed within this chapter. For the sake of simplicity, throughout this chapter both will be referred to as “consent to reapply.”

(b) Jurisdiction .

Jurisdiction over an I-212 is determined by the location of the alien and by the reason for which the application is being filed. Form I-212 should be filed:

· With the district director having jurisdiction over a port of entry, if the alien is at the port of entry.

· With the local office having jurisdiction over the alien’s residence, if the alien is in the U.S. and is simultaneously applying for a concomitant benefit (e.g., an advance parole request in conjunction with a NACARA or HRIFA adjustment of status application where the alien’s departure will effect the removal order) over which the local office has sole jurisdiction ( Note: If the application under section 245 of the Act has been initiated, renewed, or is pending in a proceeding before an immigration judge, the district director shall refer the Form I-212 to the immigration judge for adjudication);

· With the district director having jurisdiction over the alien’s residence, if the alien is in the U.S. and not simultaneously applying for a concomitant benefit over which the local office has sole jurisdiction; or

· With the service center having jurisdiction over the place where the alien’s deportation hearing was held, if the alien is outside the U.S. and applying for an immigrant visa [but not a waiver under section 212(g), (h), or (i)] through the U.S. consulate.

· With the American Consulate having jurisdiction over the alien's place of residence if the alien is outside the U.S. and is filing either (1) for a nonimmigrant visa abroad, provided that the consular officer is willing to accept the Form I-212 and recommends to the district director that the alien be permitted to reapply, or (2) an immigrant visa where a concurrent waiver under section 212(g), (h), or (i) must also be filed.

(c) Timing of Request and Adjudication .

Consent to reapply may only be considered in connection with future entries into the U.S. That is, it may only be processed where the applicant is presently in the U.S. and under an order of removal which will take effect upon his or her departure from the country, or where the alien is outside the country and seeking to return, whether abroad or at a port of entry.

Note:

While the statute requires that consent must be obtained before the “date of the alien’s reembarkation at a place outside the U.S. or attempt to be readmitted from contiguous territory,” precedent decisions and long-established practice have allowed for nunc pro tunc (or “now for then”) approval of the application in meritorious cases. See Matter of L– , 1 I&N Dec. 1 (BIA, 1940); Matter of S– N– , 6 I&N Dec. 73 (BIA 1954, AG 1954); and Matter of Vrettakos , 14 I&N Dec. 593 (BIA, 1973 and 1974). If the application is granted nunc pro tunc , the approval is retroactive to the date on which the alien reembarked for the U.S. or sought admission from Canada or Mexico.

(d) Advance Consent to Reapply .

There is a provision in 8 CFR 212.2(j) for an alien in the U.S. to apply for consent to reapply in advance where departure from the U.S. will execute an outstanding warrant of removal. Approval of such an application would be conditioned upon the alien's departure from the U.S. Approval of consent to reapply is not conditioned or limited in any other way. In most cases, an application will be filed when the applicant is under an outstanding order of deportation and ineligible for adjustment of status, but because of the equity involved (such as a U.S. citizen spouse or an immediately available visa number), the alien will be allowed to remain in the U.S. while processing the immigration visa application abroad. In most cases, it is difficult to determine how long the visa processing will take, or when the alien will be called for an interview before the American Consular Officer. Frequently the I-212 will be filed concurrently with an I-130 filed by a U. S. citizen spouse. In those cases where the consent to reapply is granted in advance, endorse the Form I-212 to show that the grant is "effective upon execution of outstanding order of deportation" and forward it to the American Consular Office where the immigrant visa is being processed.

Note 1:

In accordance with Matter of Ng , 17 I&N Dec. 63 (BIA 1979), only USCIS can grant advance consent to reapply. An immigration judge does not have such authority.

Note 2:

While it may be proper to grant advance consent to reapply for an alien who qualifies under paragraph (9)(A)(iii) or under the “domestic violence” provision of paragraph (9)(C)(ii), it is not proper to grant advance consent reapply under the “must wait ten years before requesting consent” provision of paragraph (9)(C)(ii).

(e) Application of Prior Bars to Reentry .

Previous bars to return (e.g., 5 year bar in effect for exclusion cases before IIRIRA) were superseded by IIRIRA, and by statute the alien is required to remain outside the U.S. for the duration of time set forth in section 212(a)(9) of the Act, as amended by IIRIRA. An alien who was order excluded under the prior law more than 5 years ago, and less than 10, needs to obtain an individual consent to reapply before embarking for travel to the U.S. In adjudicating such individual application for consent to rea pply, the adjudicator should consider that the alien remained outside the U.S. for the 5 years required at the time of his or her exclusion to be a significant positive factor which, in the absence of overriding negative factors, would normally warrant approval of the application.

(f) Effect on Criminal Prosecution .

The granting of consent to reapply does not relieve the alien from the criminal penalty for illegal entry after deportation. By approving a Form I-212, USCIS is only giving consent for the alien to apply for admission to the U.S. legally . USCIS is not giving consent for the alien to make or seek illegal entry. Accordingly, just as the granting of the Form I-212 does not exempt an alien who subsequently enters without inspection from being removed, it also does not exempt him or her from criminal prosecution for entering illegally, attempting to enter illegally, or being in the U.S. after having entered illegally (see section 275 of the Act).

(g) Relationship to Reinstatement of Removal under Section 241(a)(5) of the Act .

An alien who has reentered the U.S. illegally after having been removed (which includes “deported” or “excluded and deported”), or after having departed voluntarily while under an order of removal (a “self-deport”) is ineligible for any relief under the Immigration and Nationality Act. Such relief includes consent to reapply for admission to the U.S. after deportation or removal under section 212(a)(9)(A) of the Act.

If an alien who falls within this category files a Form I-212 (or for any other benefit), hold such application in abeyance and initiate reinstatement proceedings under section 241(a)(5) using Form I-871 (see 8 CFR 241.8 and Chapter 15.7 of the Detention and Deportation Officer’s Field Manual). Once those proceedings have been completed (including the consideration of any rebuttal made by the alien) and the removal order has been reinstated, the alien may be removed from the U.S. and the Form I-212 denied.

Note 1:

It does not matter whether the removal of the alien or the denial of the application comes first, so long as the Form I-871 has been completed.

Note 2:

While the proceedings set forth in 8 CFR 241.8 and Chapter 15.7 of the Deportation Officer’s Field Manual must be completed before the application can be denied due to the provisions of section 241(a)(5), a Form I-212 filed may be denied on any other appropriate basis regardless of whether the Form I-871 proceedings have been completed.

Note 3:

If the Form I-871 process has been completed, and the prior order reinstated, prior to the submission of the Form I-212, such application should be rejected and the fee returned (uncollected) to the applicant. In such situations, the applicant has no right to any further review of the matter.

(h) Relationship to Advance Parole .

Normally, an alien would not be applying for both advance consent to reapply for admission after deportation or removal and advance parole (Form I-512), but there are at least two situations where he or she could:

· An alien in the U.S. who is an applicant for an immigrant visa at an American consular abroad and who will self-deport when he or she leaves to obtain such visa might want an advance parole either as a “guarantee” of his or her ability to return to the U.S. should any complication arise in obtaining the visa or in order to satisfy the country in which the American consulate is located (particularly if he or she is not a national of that country). In this case, each application should be adjudicated on its o wn merits, without regard to its effect on the other.

· An alien in the U.S. who is an applicant for adjustment of status, either before an immigration judge in removal proceedings or before USCIS under a provision of law which allows an alien under an order of deportation to so apply (e.g., NACARA 202 and HRIFA), and who wishes to resume his or her application for adjustment upon return to this country after a journey abroad. Such alien’s departure (either with or without the advance parole) brings the bar under section 212(a)(9)(A) into effect. Since approval of the advance parole without approval of the Form I-212 (and the alien’s resulting departure and return) would render the alien ineligible for the adjustment of status, the Form I-212 should be adjudicated first (and on it’s own merits), and the advance parole should only be issued if the Form I-212 has been approved. (NOTE that it is not possible for the adjudication of the Form I-212 to wait until the alien’s return due to the requirement that consent be obtained before embarking or reembarking for travel to this country.)

(i) Authorization for Entry as a Nonimmigrant by a Previously-removed Alien .

An alien who wishes to enter as a nonimmigrant but is inadmissible under section 212(a)(9)(A) of the Act might file either Form I-212 or Form I-192 . Approval of Form I-212 permanently relieves the alien from inadmissibility under §212(a)(9)(A) (with regard to removals which occurred prior to the approval) and covers entries either as a nonimmigrant or as an immigrant. On the other hand, approval of Form I-192 only relieves the alien from the inadmissibility ground for the number of visits and time period specified in the approval (again, with regard to removals which occurred prior to the approval), and only pertains to admission as a nonimmigrant. Fo r this reason, there are situations where it may be appropriate to approve the more limited Form I-192, but not the I-212. If the alien’s justification for travel to the U.S. is limited to a single event which is not likely to recur (e.g., the funeral of the alien’s sole relative in the U.S.) or where the proof of the alien’s rehabilitation is not quite as convincing (perhaps due only to the recency of the removal), USCIS would be likely to approve the Form I-192 but not the Form I-212. Conversely, if the a lien’s need to make trips to the U.S. is ongoing, his or her rehabilitation is unquestioned, and his or her ties to his country of residence are undoubted, both applications would be equally approvable and the I-212 would obviate the burden on the alien to file, and on USCIS to adjudicate, future applications.

Note:

There are also situations where it may not be appropriate to approve either Form I-212 or Form I-192 , but to authorize parole. For example, an (unrehabilitated) alien with a criminal record whose testimony is required in court proceedings might be paroled into the U.S. in the custody of law enforcement authorities, but would not be granted either a nonimmigrant waiver under section 212(d)(3) of the Act or consent to reapply under section 212(a)(9)(A) or (C).

(j) Blanket Consent to Reapply .

In 1958, certain groups of deported aliens were granted blanket consent to reapply. These grants applied to a previously deported alien who had a spouse, parent or child who was a U.S. citizen or lawful permanent resident. In 1959, a cut-off date of March 1, 1959, and a stipulation precluding aliens who entered surreptitiously were added. The blanket grants were finally eliminated completely on July 1, 1961, and are not a factor for an applicant who entered after that date.

NOTE:

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