USCIS Errors: Who Should Bear the Burden?

Is a person who was deported almost 30 years ago, and returned to the U.S. without inspection a year later subject to the permanent bar under the 1996 immigration law?

The 1996 law created the permanent bar to immigrating to the U.S.  Section 212(a)(9)(C)(i)(II) provides as follows:

“(C) Aliens unlawfully present after previous immigration violations.-

(i) In general.-Any alien who-

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

The question is whether or not this section of law is retroactive.

Our client, Mrs. Santiago (not her real name), entered the U.S., was deported, and then returned to the U.S. without inspection in the early 1980s. Did this subject her to the permanent bar?

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We think not, yet recently the USCIS denied her Application for Permission to Reapply for Admission to the United States After Deportation or Removal (Form I-212), on the grounds that a person who is subject to the permanent bar is ineligible to have an I-212 granted under two separate BIA decisions. However, neither of the cited decisions involves a person who was deported and then returned to the United States prior to the effective date of 1996 law.

We searched for the answer to this question on the new USCIS website. First, we looked at the Neufeld memo of May 6, 2009 entitled “Consolidation of Guidance Concerning Unlawful Presence Under Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I)”. However, since the portion of section 212(a)(9)(i) that allegedly makes Mrs. Santiago inadmissible is subsection II, rather than subsection I, the Neufeld memo did not answer our question.

Next, we looked to the USCIS’ Adjudicator’s Field Manual for guidance. We compliment the USCIS for posting a copy of the Manual online. This saves immigrants and their attorneys from having to spend $150 to buy the book which contains the Manual. Also, it is easier to navigate the online version of the Manual since it is searchable.

We link to the USCIS Adjudicator’s Field Manual from our “USCIS” page at 

http://www.shusterman.com/uscitizenshipandimmigrationservices/#1a

Unfortunately, the Manual also fails to deal with the issue of retroactivity of subsection II of the permanent bar.

So, is it possible to find an answer to our question on the Web?

We did a Google search, and found several web sites (including our own) which contain an INS memorandum entitled “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and Nationality Act (Act)”, written by General Counsel Paul Virtue, which answers our question.  See our “Unlawful Presence and the 3/10 Year and Permanent Bars” page at

 http://www.shusterman.com/unlawfulpresencesimmigrationbars/#1

The Virtue memo states as follows: “Section 212(a)(9)(C)(i)(II) of the Act applies to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the United States unlawfully any time on or after April 1, 1997.” Eureka! The permanent bar is not retroactive and, therefore, does not apply to Mrs. Santiago.

We find it troubling that the Virtue memo is apparently absent from the USCIS’ new website even though it is the only guidance regarding this issue emanating from the agency during the 13 years since the law was enacted.

The agency has no regulations which implement this section of law, and does not guide its officers as to the proper interpretation of the section 212(a)(9)(c)(i)(II) in its Adjudicator’s Field Manual.

It is no wonder that the USCIS examiner mistakenly assumed that the permanent bar applied to Mrs. Santiago. And, or course, the only way for the Service’s mistake to be corrected is for Mrs. Santiago to pay the USCIS to file an appeal.

This is obviously unfair to Mrs. Santiago. There must be a better way.

We suggest that:

(A) USCIS.gov be revised so that all policy memoranda appear on the website;

(B) The Adjudicator’s Field Manual be updated to reflect the guidance that was given to the field in 1997 by the USCIS’ General Counsel’s office; and

(C) Where clear Service error results in a denial of benefits, that the filing fee be returned to the applicant.