Monday, September 01, 2008

Minors Not Protected from Permanent Bar for Unlawful Presence

An important change in the way that the U.S. Consulate in Ciudad Juarez is interpreting the applicability of the permanent bar to minors.
The three- and ten-year unlawful presence bars under INA § 212(a)(9)(B) include an exception for minors, specifically providing that unlawful presence does not include time in which an alien is under the age of 18.
Last December, we reported that CDJ was applying this exception for minors to the "permanent bar" inadmissibility ground under INA § 212(a)(9)(C). The permanent bar applies to individuals who enter the U.S. without inspection, or attempt to enter the U.S. without inspection, after having accrued unlawful presence in the aggregate of more than one year. It also applies to those who enter or attempt to enter without inspection after being removed, deported, or excluded. We understand that CDJ has changed its interpretation on this issue and now will find that a minor with more than a year of unlawful presence in the aggregate who enters or attempts to enter the U.S. without inspection is subject to the permanent bar. Adults in the same situation would also be subject to the permanent bar if their unlawful presence and reentry occurred while a minor.

The exceptions to inadmissibility for unlawful presence, including the exception for minors, are specifically part of the statute at INA § 212(a)(9)(B). There are no regulations relating to unlawful presence inadmissibility under 212(a)(9)(B) nor permanent bar inadmissibility under 212(a)(9)(C). Policy guidance issued by the former INS on this matter in 1997 concluded that the unlawful presence exceptions to inadmissibility under 212(a)(9)(B) do not apply to permanent bar inadmissibility under 212(a)(9)(C).

Example: MIguel, a citizen of Mexico, entered the United States on a tourist visa in 1998 at age 5 along with his parents. The whole family overstayed their authorized period of stay by 18 months and then returned to Mexico in 2000. In 2003, Miguel and his family returned to the United States without inspection. Miguel, who is now 15 years old, has a current priority date and is not eligible for adjustment of status. If he leaves the U.S. to consular process in Mexico, he will trigger the permanent bar because he has more than a year of unlawful presence in the aggregate, followed by an entry without inspection. The fact that he is 15 years old does not protect him from the permanent bar under INA § 212(a)(9)(C).

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