On Feb. 14, 2023, the Board of Immigration Appeals issued a decision in Duarte-Gonzalez, holding that the three- and 10-year unlawful presence bars can continue to run while a noncitizen is inside the United States.[1]

THE THREE- AND 10-YEAR UNLAWFUL PRESENCE BARS

Under §212(a)(9)(B) of the Immigration and Nationality Act (INA), certain individuals who accrue unlawful presence in the U.S., depart and then apply for admission are subject to penalties known as the three- and 10-year unlawful presence bars. These grounds of inadmissibility apply to three classifications of individuals: 1) individuals who remain inside the U.S. past the expiration of their authorization, 2) individuals who entered without inspection and 3) individuals who knowingly made a false claim of citizenship to obtain permission to enter the U.S.

TRIGGERING THE THREE- AND 10-YEAR UNLAWFUL PRESENCE BARS

Under §212(a)(9)(B)(i)(I) of the INA, the three-year unlawful presence bar is triggered when a noncitizen, beginning April 1, 1997, 1) was unlawfully present in the U.S. for a continuous period of more than 180 days but less than one year, 2) voluntarily departed from the U.S. before any immigration proceedings commenced and 3) then applied for admission to the U.S. Noncitizens who trigger the three-year unlawful presence bar are inadmissible for a period of three years from the date of departure.[2]

Under §212(a)(9)(B)(i)(II) of the INA, the 10-year unlawful presence bar is triggered when a noncitizen, beginning April 1, 1997, 1) was unlawfully present in the U.S. for a continuous period of one year or more, 2) left voluntarily or by deportation/removal and 3) then applied for admission to the U.S. Noncitizens who trigger the 10-year unlawful presence bar are inadmissible for a period of 10 years from the date of departure or removal.[3]

INTERPRETATION OF THE THREE- AND 10-YEAR PERIODS OF INADMISSIBILITY

Over the years, the United States Citizenship and Immigration Services (USCIS) has taken the informal stance that a nonimmigrant is required to spend the three- and 10-year periods of inadmissibility outside the U.S. Additionally, there have been various unpublished board decisions on the issue of whether a noncitizen must remain outside the U.S. for the relevant period. However, the board has never addressed the issue in a precedent decision.[4] On June 24, 2022, the USCIS published a policy memorandum that formally recognized that the three- and 10-year periods of inadmissibility can be spent inside the U.S.[5] On Feb. 14, 2023, the board came to the same conclusion in Duarte-Gonzalez.[6]

MATTER OF DUARTE-GONZALEZ, 28 I&N DEC. 688 (BIA 2023)

In June 2000, Mr. Duarte-Gonzalez was admitted to the United States with authorization to remain for a period of 30 days. However, he did not depart until August 2001. Mr. Duarte-Gonzalez was later admitted to the U.S. in August 2001 on a nonimmigrant visa, with authorization to stay for a temporary period not to exceed 30 days. After his admission in August 2001, Mr. Duarte-Gonzalez never left the U.S. and applied for an adjustment of status under §245(a) of the INA more than 10 years later.

On April 3, 2019, the immigration judge rendered a decision denying Mr. Duarte-Gonzalez’s application, concluding that he was “not eligible for adjustment of status because he did not remain outside the United States during the entire 10-year period of inadmissibility pursuant to section 212(a)(9)(B)(i)(II) of the INA, 8 U.S.C. § 1182(a)(9)(B)(i)(II).”[7] Mr. Duarte-Gonzalez appealed the decision, arguing that he was eligible for adjustment of status because the plain reading of §212(a)(9)(B)(i)(II) of the INA does not require a noncitizen to remain outside the U.S. for the 10-year period of inadmissibility.[8]

On appeal, the board held, “Noncitizens who are inadmissible for a specified period of time pursuant to section 212(a)(9)(B)(i) of the INA, 8 U.S.C. § 1182(a)(9)(B)(i), due to their previous unlawful presence and departure are not required to reside outside the United States during this period in order to subsequently overcome this ground of inadmissibility.”[9] To reach this conclusion, the board looked at the plain language of Section 212(a)(9)(B)(i) of the INA and determined it contains no requirement for the noncitizen to remain outside the U.S. during the entire three- or 10-year period of inadmissibility.[10] The board supported their conclusion by analyzing the language of the adjacent subsection, 212(a)(9)(C)(ii), known as the “permanent bar,” which specifically states that a noncitizen must spend time “outside the United States.”[11] The board reasoned, “A negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute.”[12]

Based on this reasoning, the board concluded that Mr. Duarte-Gonzalez was not currently inadmissible under §212(a)(9)(B)(i)(II) of the INA and was not prohibited under this section from seeking adjustment of status.[13] The board clarified that in August 2001, when Mr. Duarte-Gonzalez sought admission, he was inadmissible under the plain terms of Section 212(a)(9)(B)(i)(II) of the INA because the 10-year waiting period had not yet elapsed.[14] However, because Mr. Duarte-Gonzalez was admitted to the U.S. on a nonimmigrant visa and had not departed since, he was not currently inadmissible as the 10-year waiting period since his departure had now elapsed.[15]

THE IMPORTANCE OF DUARTE-GONZALEZ

In issuing its decision in Duarte-Gonzalez, the board set precedent, taking the same position as the USCIS that the three- and 10-year periods of inadmissibility can continue to run while a noncitizen is inside the United States.[16] This means that both the immigration court and the USCIS interpret the three- and 10-year unlawful presence bars the same. Therefore, regardless of whether a noncitizen is seeking adjustment of status with the USCIS or through the immigration court, the guidance is the same.

Moving forward, the USCIS and the immigration court will look at the amount of time that has passed since the noncitizen triggered the three- or 10-year unlawful presence bar and the manner in which the noncitizen returned to the United States. This inquiry will be conducted without regard to where the noncitizen is physically located. Therefore, once the requisite three- or 10-year time period has passed since the noncitizen triggered the three- or 10-year unlawful presence bar, the ground of inadmissibility no longer applies, and the noncitizen is eligible for adjustment of status. This takes away the need for an unlawful presence waiver to adjust status and gives noncitizens who do not qualify for an unlawful presence waiver the ability to acquire lawful permanent residence in the U.S.

WHO CAN (AND CANNOT) BENEFIT?

In Duarte-Gonzalez, the board made it clear that the manner in which a noncitizen returns to the United States after the departure that triggered the three- or 10-year time bar is extremely important. Let’s look at some examples of who can and who cannot benefit.

Example One

Yamilet entered the United States in 2005 using a border crossing card and was given an authorized stay of six months. In 2010, Yamilet left the U.S. and returned approximately one month later using her border crossing card. She now wishes to apply for adjustment of status.

In this example, Yamilet triggered the 10-year unlawful presence bar under §212(a)(9)(B)(i)(II) of the INA when she departed the U.S. after accruing more than one year of unlawful presence. However, because Yamilet was admitted using her border crossing card when she returned to the U.S., she did not trigger the permanent bar under §212(a)(9)(C)(ii) of the INA. Therefore, because more than 10 years have passed since Yamilet departed the United States, she is no longer inadmissible under §212(a)(9)(B)(i)(II) of the INA.

Example Two

Miguel entered the United States in 2000 without inspection. In 2002, he left the U.S. to help his family settle the estate of his late grandfather. Miguel returned one week later without inspection. He now wishes to apply for adjustment of status based on a family-based petition.

In this example, Miguel triggered the 10-year unlawful presence bar under §212(a)(9)(B)(i)(II) of the INA when he departed the U.S. after accruing more than one year of unlawful presence. However, because Miguel returned to the States without inspection, he is inadmissible even though the 10-year period of inadmissibility has passed. This is because when Miguel reentered the U.S. unlawfully, he triggered the permanent bar under Section 212(a)(9)(C)(ii) of the INA. Therefore, he is permanently barred and will never be able to seek lawful permanent residence through a family-based petition.

Example Three

Laura entered the United States without inspection in December 1999 and departed to visit family in August 2000. She returned one week later without inspection and now wishes to apply for adjustment of status.

In this example, Laura triggered the three-year unlawful presence bar under §212(a)(9)(B)(i)(I) of the INA when she departed the U.S. after accruing more than 180 days but less than one year of unlawful presence. However, because it has now been more than three years since Laura departed the U.S., she is no longer inadmissible under §212(a)(9)(B)(i)(I) of the INA. Additionally, Laura is not subject to the permanent bar under §212(a)(9)(C)(ii) of the INA because it is only applicable to noncitizens who accrue more than one year of unlawful presence, depart and then reenter or attempt to reenter unlawfully. Therefore, Laura is eligible for adjustment of status.

FINAL THOUGHTS

The ruling in Duarte-Gonzalez makes it clear that the three- and 10-year periods of inadmissibility can run while the individual is inside the U.S. based on the plain language of the statute. This is a positive development that provides clarity for individuals who are inadmissible due to their previous unlawful presence and departure and may allow more noncitizens to qualify for adjustment of status. However, as discussed above, there are very few factual scenarios in which a noncitizen who has triggered the three- or 10-year unlawful presence bar may return to the U.S. before the requisite time period has run without triggering the permanent bar under §212(a)(9)(C)(ii) of the INA. Therefore, it is of the utmost importance to carefully screen individuals when assessing their eligibility for adjustment of status under Duarte-Gonzalez.

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ABOUT THE AUTHOR

Katelyn N. Wade is an immigration attorney at Doerner, Saunders, Daniel & Anderson LLP with experience in employment-based petitions, work visas, family petitions, citizenship applications, work authorization cards, deportation defense, waivers and appeals. She is registered to practice before the Executive Office for Immigration Review and the Bureau of Indian Affairs and has experience working with U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement and the Department of Labor. Ms. Wade has also successfully represented clients in cases involving L1-A visas, EB-1 visas, national interest waivers and cancellation of removal.

 

 

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ENDNOTES

[1] 28 I&N Dec. 688 (BIA 2023).

[2] INA §212(a)(9)(B)(i)(II).

[3] Id.

[4] See Jose Armando Cruz, A087-241-021 (April 9, 2014); see also Jose Tapia-Cervantes, A208-939-645 (Dec. 21, 2018).

[5] USCIS, Policy Memorandum: INA 212(a)(9)(B) Policy Manual Guidance (June 24, 2022), https://bit.ly/4fW8X8Y.

[6] Duarte-Gonzalez, 28 I&N at 691.

[7] Matter of Duarte-Gonzalez, 28 I&N Dec. 688, 689 (BIA 2023).

[8] Id.

[9] Id. at 691.

[10] Id. at 690.

[11] Id. at 691.

[12] Id. (citing Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006)).

[13] Id. at 691.

[14] Id. at 691, n.4.

[15] Id.

[16] Id. at 691.