THE OKLAHOMA BAR JOURNAL 28 | OCTOBER 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 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. DuarteGonzalez 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 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.
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