Previous Deportation or Unlawful Presence

Posted on: November 12th, 2012
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A person who was placed in deportation proceedings upon their entry to the US and was ordered deported is inadmissible for a minimum of five years. After a second such deportation, the period of inadmissibility is 20 years. Those who have ever been convicted of an aggravated felony are permanently inadmissible to the US. If the person subject to the deportation order left the US without allowing the deportation to occur, they are inadmissible for 10 years. Again, if it is a second deportation, the period of inadmissibility is 20 years, and if the person has been convicted of an aggravated felony, they are permanently inadmissible.

Along with the above ground of inadmissibility, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act created the concept of “unlawful presence” and made it a ground of inadmissibility. People who have been unlawfully present in the US for more than 180 days but less than one year are subject to a three year bar on admission, while those who have been unlawfully present for more than a year are inadmissible for ten years. Also, those who have been unlawfully present for more than one year, were deported, and then seek to reenter the US without authorization are permanently inadmissible.

While the 3/10 year bar, as it is commonly known, seems straightforward, issues involved in determining exactly what constitutes unlawful presence make it more complicated. The relevant statute (Section 212(a)(9)(B)(ii) of the Immigration and Nationality Act) defines unlawful presence as presence “in the United States after the expiration of the period of stay authorized by the Attorney General or [presence] in the United States without being admitted or paroled. The INS has not issued regulations to further define the concept, providing only memoranda on the issue, essentially saying that a person begins accruing unlawful presence when they remain in the US past the expiration date of their I-94. Unlawful presence can also be accrued if, in deportation proceedings, the immigration judge determines that there has been a status violation. Those entrants who do not have a date on their I-94, but are instead admitted for the duration of status (primarily students) do not accrue unlawful presence until the INS rules that they have violated their status.

An applicant who was formally admitted or paroled into the US and timely files an application to extend or change their status is given a 120 day grace period following the date on the I-94 during which no unlawful presence will accrue.

There are some exceptions to the 3/10 year-bar. So long as a person is under 18, they will not accrue unlawful presence. People with a bona fide pending asylum application do not accrue unlawful presence, nor do beneficiaries of the family unity program. Other groups that do not accrue unlawful presence include people with pending application for adjustment of status, people in temporary protected status, and people under a grant of deferred enforced departure.

It is possible to obtain a waiver of the 3/10-year bar. To do so, the applicant must demonstrate that if the waiver is not granted, their US citizen or lawful permanent resident spouse or parents would suffer extreme hardship. While this standard is nowhere defined, cases make it clear that the hardship required will not be found in many cases.