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A. We have not seen a definition of this phrase. However, the INS has listed various categories of people who the INS concedes are present in a period of authorized stay and other categories who the INS says are not in a period of authorized stay.
The June 17 Virtue Memo says the following classes of people are present in the United States pursuant to "a period of stay authorized by the Attorney General". This means that people in these categories are not accruing time in unlawful presence.
People with properly filed applications for
adjustment under INA sections 245 or 245(i);
People admitted to the United States as refugees
under INA section 207;
People granted asylum under INA section 208;
People granted withholding of deportation or removal
under prior section 243(h) (for people placed in
proceedings before April 1, 1997) or current
section 241(b)(3) (for people placed in proceedings
on or after April 1, 1997).
People under a grant of Deferred Enforced Departure
(DED);
People under a grant of Temporary Protected Status
(TPS) before April 1, 1997, under prior INA section
244A, or after April 1, 1997 under current section
244.
Cuban or Haitian entrants under section 202(b) of
Pub. L. 99-603.
Again, this is the INS interpretation at this time. AILA is urging the INS to adhere to this position when it issues regulations.
Q. Are there categories of people the INS believes are not in "a period of stay authorized by the Attorney General"?
A. Yes. The June 17 Virtue Memorandum says the following categories of people are not in a "period of stay authorized by the Attorney General". That is, the INS says the following people are in "unlawful presence":
People with pending applications for cancellation of
removal (240A);
People with pending applications for withholding of
removal (241(b)(3));
People granted deferred action status;
People in federal court litigation;
People under an order of supervision;
People granted "satisfactory departure"
AILA disagrees with the INS regarding the foregoing categories of people. AILA will continue to urge the INS to adopt a regulation confirming that these people are in a period of stay authorized by the Attorney General.
A. AILA argues that they are, but so far the INS has not agreed. In fact, the June 17 Virtue Memorandum says that people with pending applications for cancellation of removal, for example, are not in a period of authorized stay.
AILA argues that the time during which people are in removal proceedings should be considered a period of stay authorized by the Attorney General. We submit, in sum, that the INA and regulations authorize removal hearings, require respondents to appear for those hearings, and heavily penalize them for not appearing. Therefore, pursuit of removal proceedings is, at the least, "authorized" by the Attorney General.
Further, if people in proceedings are accruing unlawful presence time, they will be forced to abandon claims that they are not removable and to sacrifice applications for relief from removal. This would raise constitutional questions about the denial of due process under the INA.
Q. What about people still in deportation or exclusion proceedings?
A. The June 17 Memorandum does not address whether people with pending applications for relief from deportation or exclusion are in a period of stay authorized by the Attorney General. The Memorandum only says that people with pending applications for cancellation of removal are not in a period of authorized stay. However, it is possible that the INS will adopt the same interpretation for deportation and exclusion proceedings as it has for removal proceedings.
AILA repeatedly has stated our position to the INS, that during deportation or exclusion proceedings, just as during removal proceedings, people are in an authorized period of stay. Further, because deportation and exclusion proceedings continue under the old law, these new bars arguably should not apply to holdover proceedings.
A. That is correct. The three-year bar only applies to people who "voluntarily departed" the United States after the period of "unlawful presence". INA section 212(a)(9)(B)(i)(I). The ten-year bar also only applies if the person departed after the unlawful presence. INA section 212(a)(9)(B)(i)(II).
Therefore, if your client remains in the United States during or after her period of unlawful presence, the three and ten-year bars do not apply to her.
Other bars to admissibility may apply, however. For example, new INA section 212(a)(6)(A) makes inadmissible people who are present in the United States without having been admitted or paroled. If your client entered without inspection or admission, she may be inadmissible under 212(a)(6)(A). However, this inadmissibility is forgiven by section 245(i). We will not include a detailed explanation of 212(a)(6)(A) in this article.
Q. What does "voluntarily departed" mean? Does this just refer to official "voluntary departures"?
A. Apparently it refers to any departure the person made voluntarily.
The statute, 212(a)(9)(B)(i)(I), says a voluntary departure may trigger the bar "whether or not [the voluntary departure was] pursuant to section 244(e)." Section 244(e) was the citation for voluntary departure under the pre- IIRAIRA statute. Voluntary departure now is found at section 240B of the INA. It is not clear what it means, if anything, that the bar language neglects to cite the new statute on voluntary departure.
Q. Does "voluntarily departs" include departure under an order of removal under the new law?
A. Probably not. This provision of the statute probably was intended to cover situations where the person left voluntarily, before being ordered removed.
By contrast, departures under an order of removal trigger the harsher bar of 212(a)(9)(C). That bar is triggered when a person is "ordered removed" under section 235(b)(1) [expedited removal], section 240 [regular removal] or "any other provision of law."
Q. What about departure after an order of deportation or exclusion (old law)? Does that trigger either bar?
A. The ten-year bar of INA section 212(a)(9)(B) does not require the departure be "voluntary". Therefore, a departure after an order of deportation or exclusion probably could trigger this bar.
Further, departures after an order of deportation or exclusion could trigger the separate 10-year bar to admissibility described in INA section 212(a)(9)(A). That section says that a person who departed while an order of removal was outstanding is inadmissible for 10 years.
A reference to "an order of removal" is deemed to include a reference to an "order of exclusion and deportation" or an "order of deportation" INA Section 309(d)(2). Therefore, when section 212(a)(9)(A) refers to departures while an order of removal is outstanding, it probably encompasses departures after exclusion or deportation orders as well.
This also is the position taken in a March 31, 1997 Paul Virtue Memorandum regarding New Grounds of Inadmissibility (on some topics, the March 31 Memorandum was "revisited" and corrected in the June 17 Virtue Memorandum. The later Memorandum did not change what the March 31 Memorandum said regarding departures under orders of deportation or exclusion).
A. Section 235(b)(1) is the statute regarding expedited removal. Section 240 governs removal proceedings. So this phrase means that the voluntary departure must have occurred before expedited removal or removal proceedings began.
Q. Does this mean that people should want to be placed in removal proceedings before they depart? Will they avoid the bars that way?
A. No, in our opinion. We think the language "before commencement of removal proceedings" is intended to give a break to someone who departs voluntarily before the INS takes action to remove them and before being ordered to depart.
Also, people who are in removal proceedings, are ordered removed, and then depart may be caught by the separate ten-year bar of 212(a)(9)(A)(ii) or the "permanent" bar of 212(a)(9)(C).
A. Yes. See INA section 212(a)(9)(B)(iii). The three and ten-year bars do not apply to:
Lawful permanent residents seeking readmission
(212(a)(9)(B)(i));
Minors (persons under 18 years of age);
Persons who have "bona fide" applications for
asylum pending under section 208, unless the person
was employed without authorization during this
period;
Person who are beneficiaries of family unity
protection under section 301 of the Immigration Act
of 1990 (generally, spouses and children of IRCA
legalization applicants);
Battered spouses and children, if there is
substantial connection between the unlawful presence
and the abuse.
A. The INS has not indicated what it will consider to be a bona fide application for asylum. This is something that will be clarified in regulations and perhaps case law. Prior case law may be relevant. We argue that even if an asylum application is not ultimately granted it may have been bona fide.
Q. What if the asylum applicant were employed for only a few days during the time her application is pending. Does that negate the exception, and mean the entire time the application is pending is unlawful presence?
A. We hope the INS will not adopt this position. We believe the statute should be interpreted to provide an asylum applicant this exception unless that person was employed without authorization during the entire period her application was pending. A brief time of unauthorized employment - while waiting for an employment authorization renewal, for example - should not negate the exception.
Q. Does the asylum exception apply while the case is on appeal?
A. Yes, that is the INS’s interpretation and we certainly agree. The June 17 Virtue Memorandum at 3 says that the exception applies "while administrative or judicial review is pending."
Q. If an affirmative asylum application is referred to an immigration judge, is the exception voided? Does unlawful presence time begin accruing?
A. Presumably not. If the asylum application is bona fide, it should not matter that it has been referred to an immigration judge. The INS’s statement that the exception applies even during administrative or judicial review supports this position.
A. Again, there is yet no information from the INS on this point. We would argue, however, that filing for an extension of family unity should trigger the exception. The statute refers to "a beneficiary of family unity protection." Filing for family unity may protect the applicant from deportation or removal. Therefore, the mere filing arguably conveys "family unity protection".
In any event, clients should submit renewals of their family unity benefits at least three months before the benefits expire. This will allow sufficient time for the INS to approve the extension and will avoid any gap in protection. And eligible clients who did not apply for family unity protection should apply immediately.
A. Yes, under INA section 212(a)(9)(B)(iv), unlawful presence is tolled for 120 days (that is, 120 days do not count) if the person:
was lawfully admitted or paroled into the United
States;
filed a "nonfrivolous" application for a change or
extension of status before the expiration of stay
authorized by the Attorney General;
has not been employed without authorization in the
United States before or while the application is
pending.
Q. What if the INS takes more than 120 days to approve the application for change or extension of status?
A. The INS has not addressed what it will do in these circumstances. AILA argues that people should not be considered to be in unlawful presence when the cause is INS processing delays.
Q. What is a "nonfrivolous" application for change or extension of status?
A. It remains to be seen how the INS regulations will define "nonfrivolous". We argue that just because an application is ultimately denied does not mean it was frivolous.
Q. What if my client has a pending application for adjustment of status? Is that considered "change of status"?
A. As discussed above, thankfully the INS has now agreed with AILA that while an adjustment application is pending, the applicant is not accumulating time in unlawful presence. The INS does not consider this to be an application for a "change of status", thus there is no 120 tolling problem (because unlawful presence time does not accrue at all).
A. Yes. The statute provides that the Attorney General may waive the application of the three and ten-year bars in certain circumstances. INA section 212(a)(9)(B)(v). Aside from the statutory requirements, we do not know anything else about what limitations and conditions the INS may impose.
Waivers of the three and ten-year bars are available for:
immigrants
who are the spouse or son or daughter
of a United States citizen or an LPR, if
the refusal of admission would result in extreme
hardship to the qualifying relative.
If section 245(i) is not renewed or extended, and people need to leave the United States to obtain immigrant visas outside, they will be hit by the three and ten-year bars. The waivers then will become extremely important.
Q. Does this mean that nonimmigrants cannot obtain this waiver?
A. Apparently so.
Q. I thought the three and ten-year bars did not apply to immigrants? If the bar does not apply, why does an immigrant need a waiver?
A. True, the statute exempts lawful permanent residents from the three and ten-year bars. See INA section 212(a)(9)(B)(i). Presumably, the exemption means that someone who already is a lawful permanent resident, who is returning to the United States, is not barred by any prior period of "unlawful presence", at least not under section 212(a)(9)(B).
Presumably, the waiver could be used by intending lawful permanent residents. That is, people who are seeking to be admitted for the first time as permanent residents.
Q. A parent of a United States citizen cannot obtain this waiver, even if the United States citizen is a young child?
A. Apparently so. As written, the waiver is not available to the parent of a United States citizen or permanent resident child, no matter the child’s age.
Q. Does "son" or "daughter" include adult son or daughter?
A. Presumably so. Under the INA, "son" and "daughter" are distinct concepts from "child". "Child" is defined by INA section 101(b) as a person under 21 years of age. A son or daughter can be older than 21.
Q. Does "extreme hardship" mean the same thing it meant in the context of suspension of deportation under the old law, prior INA section 244(a)(1)?
A. Arguably, yes. The case law that defined "extreme hardship" should apply here as well. The INS has said it will address "extreme hardship" in regulations.
A. Yes. She may be inadmissible but this does not affect her eligibility for voluntary departure. In fact, in one of the weird twists of the IIRAIRA, she must prove one year of physical presence to obtain voluntary departure at the conclusion of removal proceedings. See INA section 240B(b)(1)(A). Some or all of this one year of physical presence might well be considered "unlawful presence".
Q. If my client is granted voluntary departure after she has been in unlawful presence for more than 180 days, does the voluntary departure cure the unlawful presence? In other words, is the bar washed away if she departs under voluntary departure?
A. Presumably not. A grant of voluntary departure probably would not cure the bar to admissibility. Voluntary departure means that the person can depart without an order of deportation or removal. It does not waive or do away with the ground of inadmissibility
This article is adapted from a practice advisory was written by Nadine Wettstein, Esq. with help from AILA intern Gary Merson, and input from AILA and AILF staff and members.
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