DOS Memo on Admissibility and Unlawful Presence

R 200415Z NOV 96

FM SecState WashDC

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Info US-INS WashDC

Unclas State 239978

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E.O. 12958: N/A

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Subject: P.L. 104-208 Update No. 10 - INA 212 (a)(G) and (9)

Ref: A) State 210953 B) State 208799 C) State 219622 D) State 227459 E) State 226596 F) State 225256 G) State 225321 H) State 229819 I) State 232219

Summary:

1. This cable is Number 10 in a series providing information on the immigration provisions of Pub. L. 104-208, the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996” (IIRAIRA 96). Among other things, IIRAIRA 96 essentially eliminated the old concepts of “entry,” “exclusion,” and “deportation” which in turn led to revisions in INA 212 (a)(6) and the addition of New 212(a)(9). This is an explanatory, not an operational, message. The texts of the new provisions will follow the discussion.

Correlation with New Concepts

2. Amended INA 212(a)(6) and new 212(a)(9) can be understood only in context of new concepts and terminology Pub. L. 104-208 incorporates. These new concepts respond to congressional and public perception that the INA was subject to abuse, i.e., that the Act itself enabled aliens to both get in and remain in the U.S. unwarrantedly (in large part because “deportation” included more procedural protections that “exclusion”). As corrective measures, Pub. L. 104-208 contains wholesale modification regarding “entry,” “admission,” “exclusion,” and “deportation.” These are set forth briefly in paragraphs 3-6 to provide the context for the subject changes in INA 212(g)

“Entry” Disappears; Enter “Admission”

3. Former INA 101(a)(13), a convoluted definition of “entry,” had generated much litigation and intellectual heartburn for many years. The issue: “Was the alien entering and thus subject to exclusion procedures, or had the person entered and therefore become entitled to protections in deportation proceeding?” (As an example, in a 1994 case, aliens who had been denied admission, but escaped from carrier custody and were later found, were held to have “entered” and thus subject only to deportation.) To resolve such problems, INA 101(a)(13) has been changed to a definition of “admission,” not “entry.”

Definition of “Admission”

4. New INA 101(a)(13) still includes a complex set of circumstances applicable only to lawful permanent residents (LPR’s), but its basic definition of “admission” is crystal clear. “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. An alien who is paroled under Section 212(d)(5) or permitted to land temporarily as an alien crewman shall not be considered to have been admitted.” This make it unmistakable that aliens who have entered without inspection and are later found in the United States have not “entered” (in the new terminology, “been admitted”) and will be subject to “admission” proceedings.

Exit “Exclusion” and “Deportation”

5. “Exclusion” and “Deportation” were formerly set forth as quite separate functions in INA 236, 237, 242, 242A, and 242B. Under Pub. L. 104-208, they are now generally described as “denied admission to” and “removal from” the United States, respectively. Admission procedures are in new INA 235(b)(1) and the two concepts are conjoined in New INA 240. INA 235(b)(1) is particularly striking. It gives an immigration officer authority to order summarily the immediate removal of an applicant for admission (immigrant or nonimmigrant) if the officer believes the alien inadmissible under 212(a)(6)(C) (misrepresentation) or 212(a)(7) (lack of requisite documentation). These removal orders are not subject to review or further hearing unless the alien evidences an intent to apply for asylum or a fear of persecution. (In such case, other subsections provides for a prompt asylum officer interview to determine credibility of such claim.) INA 235(b)(1)(F) includes an exception for Cubans arriving by air. INA 236(b)(1)(A)(iii) provides another exception for aliens who can establish continuous physical presence in the United States for the 2-year period immediately prior to the date of inadmissibility. New INA 240 incorporates the procedures for both denying admission at the port of entry (formerly exclusion) and removing an alien who has been admitted (formerly deportation). (There are several pages of technical amendments changing “excludable” to “inadmissible” and “deportation” to “removal” in the multitudinous places in which they appear.)

New Lead Language for INA 212(a)

6. Officers should note, in keeping with above, revised opening language to INA 212(a) from which “excludable” is dropped: “except is otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States,” with these collateral changes to the Act in mind, amend INA 212(a)(6) and new (9) becomes less murky.

212(a)(6)(A): Aliens Who Have Not Been Admitted

7. Amended INA 212(a)(6)(A) renders inadmissible “an alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General” (AG). This is a parallel provision to a deportation ground in former INA 241 (now INA 237(a)(1) and, coupled with INA 101(a)(13), re- stresses that an illegal alien is subject to the new admission procedures, rather than deportation procedures as in the past. The provision includes an exception for certain battered wives and children. There is no stated limit on such inadmissibility. (Note, however, the two discretionary exceptions at 235(b)(1) discussed in paragraph 5 above.) INA 212(a)(6)(A) clearly has operational implications for INS (e.g., regarding a change of adjustment of status application) but none directly for visa officers; i.e., it is most unlikely ever to be a ground for denying a visa.

212(a)(6)(B): Failure to Attend Proceedings

8. By contrast, new (6)(B) makes inadmissible for 5 years following (voluntary) departure or removal an alien who, without reasonable cause, fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability. This becomes new basis for visa officer adjudication of visa eligibility.

212(a)(6)(C): False Claims to U.S. Citizenship

9. Paragraph (6)(C) has a new (ii) inserted, which permanently bars an alien who has falsely claimed U.S. citizenship for the purpose of any benefit under Federal or State law. (Former (6)(C)(ii) becomes (iii). A parallel provision has been added to the grounds for removal from the United States. INA 212(a)(6)(C)(ii) is not retroactive; it applies to such false representations made on or after enactment (September 30, 1996). Therefore, aliens who have attempted or achieved new entry in the past on a false claim of U.S. citizenship are not ineligible under its terms (although they are under (C)(ii). This is a significant difference because the waiver provision in (C)(iii) applies only to aliens inadmissible under (C)(i).

Waiver Addition to Paragraph (6)(F)

10. A waiver provision has been added to (6)(F) provided no previous money penalty was imposed under INA 274(C) and the offense was solely to assist the alien’s spouse or child. It is applicable to an alien who is an LPR who temporarily proceeded abroad voluntarily and is otherwise admissible as an returning resident under IINA 211(b). It also covers an alien seeking adjustment under INA 201(b)(2)(A) or 203(a). Courts are barred from reviewing the AG’s waiver (or non-waiver) decision.

Student Visa Abusers

11. The final amendment of INA 212(a)(6) was the addition of (G); “student visa abusers.” This provision, in turn, hinges on a new 214(l) which bars acquisition of “F-1” student status for attendance at public elementary schools and publicly funded adult education programs. “F-1” status is available for attendance at a secondary school if the aggregate period of study does not exceed 12 months and the alien has reimbursed the local educational agency for the full, unsubsidized cost of providing the education. The “F-1” visa of a foreign student who is in a private school and transfers to a public school shall be voided automatically unless the alien meets the time and compensation requirements noted above. INA 212(a)(6)(G) renders inadmissible for 5 years an alien who violates new INA 214(l) and applies only to aliens who acquire “F” status, or extension or such status after November 28, 1996. It has no limiting effect on public education for aliens in any other status.

Replacement of Old 212(a)(6)(A) and (B)

12. New INA 212(a)(9)(A) is essentially a restatement of provisions formerly in 212(a)(6)(A) and (B). Clause (i) of paragraph (9)(A) makes inadmissible an alien who has been ordered removed either summarily at the port under INA 235(b)(1) or after proceedings for admission under INA 246. (This equates to the former “previously excluded” provision.) Inadmissibility period is 5 years from date or removal the first time, 20 years after second or subsequent removal, or forever if the alien has been convicted of an aggravated felony. Paragraph (9)(A)(ii) makes inadmissible an alien previously ordered removed or who departed while an order of removal was outstanding this equates with the prior “previously deported” provision. Inadmissibility periods are 10 years from the date of departure for the first such removal, 20 years after the second (or subsequent) removal, and forever in the case of an alien convicted of an aggravated felony. As under prior law, both clauses become inapplicable if the alien has received the Attorney General’s permission to reapply for admission.

Definition of “Unlawful Present”

13. INA 212(a)(9)(B)(ii) defines “unlawfully present” for purposes of INA 212(A)(9) as: presence in the United States after the period of authorized stay (overstay) or without having been admitted or paroled (illegal entry). Time while under the age of 18, or while a beneficiary or family unite protection, is not counted to determine the period of unlawful presence, nor is any time during which an alien has a bona fide application for asylum pending, unless the alien was employed without authorization during the period.

“Unlawfully Present” Less than a Year

14. INA 212(a)(9)(8)(i)(l) makes inadmissible for 3 years after departure an alien (other than an LPR) who was unlawfully present in the United State (as defined above) for a period of between 180 days and a year and departed voluntarily before the commencement of removal proceedings. If an alien who was lawfully admitted or paroled has filed a nonfrivolous application for a change or extension of status before the authorized period expired (but becomes an overstay while it is being adjudicated) and has not worked without permission. The calculation of the time period shall be suspended for not more than 120 days)

“Unlawfully Present” More than a Year - Waiver Possible for an Alien Unlawfully Present for one Year or More

15. INA 212(a)(9)(B)(I)(11) increases the period of inadmissibility to 10 years following departure for aliens who have been unlawfully present in the United States for one year or more. (Although the statute reads “departure or removal,” the accompanying committee report states that these provisions apply to those who voluntarily departed.) As with many other provisions, there is an exception to (B)(i) for certain battered wives and children. There is also a waiver provision for (9)(B)(i) cases, vested solely in the Attorney General (i.e., not reviewable in a court), for an alien who is the spouse, son or daughter of a U.S. citizen or LPR if the AG is satisfied that refusal or admission would result in extreme hardship to the citizen or LPR spouse or parent. INA 248 has been amended to incorporate 212(a)(9)(B)(i) by reference as a bar to change of nonimmigrant status unless the above waiver has been granted.

Inadmissibility Based on Prior Unlawful Stays

16. Paragraph (9)(C) makes permanently inadmissible an alien who has been unlawfully present in the United States for an aggregate or more than on year or has been ordered removed and who enters or attempts to reenter surreptitiously. Although there is not time limit on this bar, an exception is provided for an alien seeking admission more than 10 years after the alien’s last departure if the AG has consented to the alien’s reapplying for admission prior to the alien’s embarkation from abroad or attempt to reenter from contiguous territory. Unlawful presence prior to the effective date of Title III-A of Pub. L. 104-208 (April 1, 1997) shall not be counted for purposes of this provision.

Effective Dates

17. Amendments made to INA 222(a)(6)(A) and (B) and the new INA 212(a)(9) are effective as of April 1, 1997, amendments of INA 212(a)(G)(C), (F), and

(G) are effective the date of enactment (September 30, 1996) or as otherwise stated above.

Texts of the Subject Provisions

18. INA 212(a)(6) – illegal entrants and immigration violators. –

(A) Alien present without admission or parole. –

(i) In general. – An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.

(ii) Exception for certain battered women and children. – clause

(i) shall not apply to an alien who demonstrates that. –

(I) The alien qualifies for immigrant status under subparagraph (A) (iii), (A) (iv), (B)(ii), or (B)(iii) or section 204 (a)(1),

(II)(a) The alien has been battered or subjected to extreme cruelty by a spouse or parent, or by a member of the spouses or parent’s family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty, or (b) the alien’s child has been battered or subjected to extreme cruelty by a spouse or parent of the alien (without the active participation of the alien in the battery or cruelty) or by a member of the spouse’s or parent’s family residing in the same household as the alien when the spouse or parent consented to or acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty; and,

(iii) There was a substantial connection between the battery or cruelty described in subclause (I) or (II) and the alien’s unlawful entry into the United States.

(B) Failure to Attend Removal Proceedings. – Any alien who without reasonable cause fails on refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.

(Amended by Sec. 301 of Pub. L. 104-208, Sept. 30, 1996.)

(C) Misrepresentation. –

(i) In general. – Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to produce or has procured) a visa, other documentation, or entry into the United States or other benefit provided under this Act is inadmissible.

(ii) Falsely claiming citizenship. – Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act (including section 274A) or any other federal or state law is inadmissible.

(iii) Waiver authorized. – For provision authorizing waiver of clause (i) see subsection (i).

(Amended by Sec. 344 of Pub. L. 104-208, Sept. 30, 1996).

(F) Subject of Civil Penalty.—

(i) In general. – An alien who is the subject of a final order for violation of section 274C is inadmissible.

(ii) Waiver Authorized. – For provision authorized waiver of clause (i), see subsection (d)(12)

(Amended by Sec. 345(A)(1) of Pub. L. 104-208, Sept. 30, 1996).

(G) Student Visa Abusers. – An alien who obtains the status of a nonimmigrant under Section 101(a)(15)(F)(I) and who violates a term or condition of such status under section 214(l) is inadmissible until the alien has been outside the United States for a continuous period of 5 years after the date of the violation.

(Amended by Sec. 346 of Pub. L. 104-208, Sept. 30, 1996).

212(a)(9)

(A) Certain Aliens Previously Removed.—

(i) Arriving Aliens. – Any alien who has been ordered removed under section 235(b)(1) or at the end of proceedings under section 240 initiated upon the alien’s arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(ii) Other Aliens. – Any alien not described in clause (i) who—

(I) Has been ordered removed under section 240 or any other provision of law, or

(II) Departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony is inadmissible.

(iii) Exception.—Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien’s reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien’s reapplying for admission

(Amended by Sec. 301 of Pub. L. 104-208, Sept. 24, 1996).

(B) Aliens Unlawfully Present.—

(i) In general. – Any alien (other than an alien lawfully admitted for permanent residence) who—

(I) Was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to secton 244(e) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien’s departure or removal, or

(II) Has been unlawfully present in the United States for one year or more, and who again seeks admission with 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.

(ii) Construction of unlawful presence. – For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of say authorized by the Attorney General or is present in the United States without being admitted or paroled.

(iii) Exception. –

(I) Minors. – No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (i).

(II) Asylees. – No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.

(III) Family Unity.—No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (i)

(IV) Battered Women and Children.—Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(II) if violation of the terms of the alien’s nonimmigrant visa were substituted for unlawful entry into the United States’ in subclause (iii) of that paragraph.

(iv) Tolling for Good Cause.—In the case of an alien who—

(i) Has been lawfully admitted or paroled into the United States,

(ii) Has filed an nonfrivolous application for a change or extension of stay before the date of expiration of the period of stay authorized by the Attorney General; and,

(iii) Has not been employed without authorization in the United States before or during the pendency of such application, the calculation of the period of time specified in the clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.

(v) Waiver. – The Attorney General has sole jurisdiction to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawful resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.

(Amended by Sec. 301 (B) of Pub. L. 104-208, Sept. 24, 1996).

(C) Aliens unlawfully present after previous immigration violations. –

(i) In general.—Any alien who—

(I) Has been unlawfully present in the United States for an aggregate period of more than 1 year, or

(II) Has been ordered removed under section 235(b)(1), section 240, or nay other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.

(ii) Exception.—Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien’s last departure from the United States if, prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien’s reapplying for admission.

(Added by 301 of Pub. L. 104-208, Sept. 24, 1996)

.

INA 214(l) Provision are set forth in paragraph 2, update cable No. 8 (State 229819).

19. Minimize considered.

Tarnoff