UNDERSTANDING I-212S FOR INADMISSIBILITY RELATED TO PRIOR REMOVAL ORDERS AND THE PERMANENT BAR
UNDERSTANDING I-212S FOR INADMISSIBILITY RELATED TO PRIOR REMOVAL ORDERS | MARCH 2020
ILRC, PRACTICE ADVISORY: HOW TO INTERVIEW CLIENTS ABOUT THEIR ENTRIES AND ATTEMPTED ENTRIES TO THE UNITED
STATES (AND UNDERSTAND THEIR ANSWERS) (DEC. 18, 2018), AVAILABLE AT: HTTPS://WWW.ILRC.ORG/HOW-INTERVIEW-CLIENTS-
ABOUT-THEIR-ENTRIES-AND-ATTEMPTED-ENTRIES-UNITED-STATES-AND-UNDERSTAND-THEIR.
ILRC, PRACTICE ADVISORY: A STEP-BY-STEP GUIDE TO COMPLETING FOIA REQUESTS WITH DHS (NOV. 17, 2017), AVAILABLE AT:
HTTPS://WWW.ILRC.ORG/STEP-STEP-GUIDE-COMPLETING-FOIA-REQUESTS-DHS.
8 CFR § 245.24.
INA § 212(d)(3)(A).
See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013); Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017). INA § 245(a) requires
adjustment applicants to prove that they were inspected and admitted or paroled.
Matter of Sosa Ventura, 25 I&N Dec. 391, 393 (BIA 2010).
INA § 244(f)(4).
25 I&N Dec. 771 (BIA 2012).
INA § 212(a)(9)(B)(i)(II) renders inadmissible, any person who “has been unlawfully present in the United States for one year or
more, and who again seeks admission within 10 years of the date of . . . departure or removal from the United States.”
See also INA § 101(g) (“For the purposes of this chapter any alien ordered deported or removed (whether before or after the
enactment of this chapter) who has left the United States, shall be considered to have been deported or removed in pursuance of
law, irrespective of the source from which the expenses of his transportation were defrayed or of the place to which he departed.”).
Note that upon return to the United States on advance parole, applicants who are adjustment-eligible may have an argument that
they are an “arriving alien,” therefore vesting jurisdiction on USCIS to adjudicate their application. See 8 CFR § 245.2(a)(1); Matter of
Yauri, 25 I&N Dec. 103, 106-107 (BIA 2009). So while departing on advance parole may give rise to inadmissibility under §
212(a)(9)(A), once the person is paroled, they may become eligible to adjust status with USCIS if the application is filed in
conjunction with an I-212. In practice, advocates have had mixed results in convincing USCIS to take jurisdiction over such
applications. A few practitioners have reported that some immigration judges are taking jurisdiction of adjustment applications even
where the most recent entry by the applicant was with advance parole.
USCIS Policy Memorandum: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTA) in Cases
involving Inadmissible and Deportable Aliens (Jun. 2018), available at:
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-
Cases-and-Issuance-of-NTA.pdf.
For a more detailed explanation of the memo see ILRC Practice Advisory: Updated Guidance for the Referral of Cases and
Issuance of Notices to Appear (Dec. 2018), available at: https://www.ilrc.org/updated-guidance-referral-cases-and-issuance-notices-
appear-tips-and-strategies-working-clients.
8 C.F.R. § 212.2(j). See 81 FR 50244 (July 29, 2016). The final rule allows individuals with a final order of removal, deportation, or
exclusion to be eligible for a provisional waiver if they have already applied for, and been granted, an I-212 consent to reapply.
8 C.F.R. § 212.7(e)(4)(iv).
See, e.g. unpublished BIA decision Matter of Y-M-C- (May 25, 2018), available as AILA Doc. No. 1518339.
Available for purchase at: https://www.ilrc.org/defending-immigrants-in-immigration-court.
INA § 240(c)(7); 8 C.F.R. § 1003.2(c).
Id.
INA § 240(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), § 1003.23(b)(4)(i).
INA § 240(b)(5)(C); INA § 240(e)(1); 8 C.F.R. § 1003.2(c)(3), § 1003.23(b)(4)(ii), (iii)(A).
INA § 240(c)(7)(C)(iv).
8 C.F.R. § 1003.2(c)(3)(iii); § 1003.23(b)(4)(iv).
8 C.F.R. § 1003.23(b)(1); § 1003.2(a).
Very technically, an approved I-212 gives someone permission to initiate the process of returning; they must otherwise have a
pathway to immigrate and the I-212 is the necessary precursor to pursuing that path.
See Matter of Ducret, 15 I&N Dec. 620 (BIA 1976); Matter of Garcia Linares, 21 I&N Dec. 254 (BIA 1996); see also AFM at Ch.
43.1(c).
AFM at Ch. 43.1(c).
Matter of Tin, 14 I&N Dec. 371 (RC 1973); Matter of Lee, 17 I&N Dec. 275 (Comm. 1978). The Seventh and Ninth Circuits have
found that it would be reasonable to give less weight to equities gained after entry of the removal order. See Garcia--Lopes v. INS,
923 F.2d 72 (7th Cir. 1991); Carnalla-Nunoz v. INS, 627 F.2d 1004 (9th Cir. 1980).