Our office got a terrific win (after two RFEs!) for a Mexican National and the father of a U.S. Marine facing ineligibility for legal residency because of his prior illegal entries and re-entries into the U.S. An illegal re-entry can make it legally impossible for a non-citizen to get green card status in the U.S. Thanks hard-work and relentless legal research, a deep investigation into the facts of the case, and a never-say-die attitude, our client can finally breathe free, after nearly three decades living in the shadow.

Illegal reentry and unlawful presence are considered the most punitive areas of immigration law. These laws, under IIRIRA became effective April 1, 1997, and the courts and USCIS have interpreted and re-interpreted their application repeatedly. Unlawful presence can trigger inadmissibility to the US for 3 or 10 years once a non-citizen leaves the U.S. For those with illegal reentry after an order of removal or after unlawful presence in the U.S. more than one year, a permanent bar from the U.S., unless the non-citizen spends ten years outside of the U.S.

Our client (whom we’ll call Victor) presented a challenging case. First, he was granted parole-in-place as the father of a U.S. Marine. This converted him from a non-citizen who last illegally entered the U.S. into a non-citizen lawfully admitted into the U.S. and made him eligible to apply for his permanent residency here in the U.S. through adjustment of status, without requiring departure from the U.S. to immigrant visa process in Ciudad Juarez, Mexico.

Second, Victor’s main period of unlawful presence and his illegal entries straddled the April 1, 1997, IIRIRA effective date for unlawful presence and illegal re-entry. USCIS and federal courts have spilled barrels of ink, going back and forth (Obama-Trump-Biden Whiplash), on how periods of unlawful presence and timing of multiple illegal entries occurring both before and after April 1, 1997, can make a non-citizen admissible or inadmissible for permanent residency.

We knew the rules. But the rules operate in the abstract, and we were anxious to see how this dynamic practice environment (η αλλαγή είναι η μόνη σταθερά στη ζωή) would play out at our hometown San Jose USCIS field office. In the end, we got our answers, which we’ll provide here for your consideration:

Can a period of unlawful presence prior to April 1, 1997, be counted towards triggering 3/10-year inadmissibility under INA § 212(a)(9)(B), where that period also straddles a period of unlawful presence post-April 1, 1997? No, there is no inadmissibility under INA § 212(a)(9)(B). Under the May 6, 2009, Neufeld Memo and legacy USCIS AFM, accrual of unlawful presence shall commence only on or after the relevant April 1, 1997, IIRIRA 9B effective date.

Can any period of post-April 1, 1997, trigger the unlawful presence inadmissibility under INA § 212(a)(9)(B) be triggered absent a departure from the U.S.?
No, there is no inadmissibility under INA § 212(a)(9)(B). Under the statute and successive USCIS interpretations, any period of unlawful presence may only trigger 9B inadmissibility if accompanied by a subsequent departure from the United States.

Can USCIS count multiple separate periods of unlawful presence in the aggregate under INA § 212(a)(9)(B) where the non-citizen has departed and re-entered the U.S.?
No. Under the Neufeld Memo and legacy Adjudicator’s Field Manual, separate periods of unlawful presence may not be counted in the aggregate to reach the six-month or twelve-month mark for triggering 9B inadmissibility, regardless of whether the re-entry was lawful or unlawful.

And this one, our most complicated hurdle:

In the absence of a prior order of removal, deportation or exclusion, is an applicant for adjustment of status who illegally reentered the U.S. after April 1, 1997, inadmissible under INA § 212(a)(9)(C), if the aggregate period of unlawful presence is one year or more, but the period of unlawful presence subsequent to April 1, 1997, is less than one year? No, there is no inadmissibility under INA § 212(a)(9)(C). Under recent 9th Circuit case law in Rivera-Vega v. Garland, 39 F.4th 1146 (2022), an unlawful reentry after April 1, 1997, will only trigger (9)(C) inadmissibility if made after an order of deportation, exclusion, or removal, thereby falling within the ambit of (9)(C)(ii). Rivera-Vega is silent on illegal reentry post-April 1, 1997, and therefore doesn’t apply to cases involving illegal reentry after an aggregate period of unlawful presence. For that reason, Victor was not subject to (9)(C) permanent bar inadmissibility.

This was a team effort putting together the facts and the law, featuring Attorneys Daniel Shanfield and Merle Kahn, and Senior Paralegal Miguel Melendrez. Victor was an amazing client, keeping the faith after two USCIS requests for evidence (RFEs).
Great work everyone! On to the next case!