United States of America: Whether an Indian national who was declared illegal in the United States would have been deported from the United and barred from returning for a period of ten years; if so, for what reasons and under what law (2002)

The following information on removal from the United States (US) was taken from the United States Immigration and Nationality Act (INA), Section 212 – "General Classes of Aliens Ineligible to Receive Visas and Ineligible for Admission; Waivers of Admissibility" (US 1952).

[Article] (9) 12/ ALIENS PREVIOUSLY Removed.-

(A) Certain aliens previously removed.-

(i) Arriving aliens.-Any alien who has been ordered removed under section 235(b)(1) or at the end of proceedings under section240 initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(ii) Other aliens.-Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or

(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(iii) Exception.-Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.

(B) 13/ ALIENS UNLAWFULLY PRESENT.-

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) 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 such alien's departure or removal from the United States, is inadmissible.

(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

(iii) Exceptions.-

(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

(II) Asylees.-No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.

(III) Family unity.-No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 14/ shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

(IV) Battered women and children.-Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(ii) if "violation of the terms of the alien's nonimmigrant visa" were substituted for "unlawful entry into the United States" in subclause (III) of that paragraph.

(iv) Tolling for good cause.-In the case of an alien who-

(I) has been lawfully admitted or paroled into the United States,

(II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and

(III) has not been employed without authorization in the United States before or during the pendency of such application,the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.

(v) Waiver.-The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.

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

(i) In general.-Any alien who-

(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or

(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.

(ii) EXCEPTION.-Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission. 14a/ The Attorney General in the Attorney General's discretion may waive the provisions of section 212(a)(9)(C)(i) in the case of an alien to whom the Attorney General has granted classification under clause (iii), (iv), or (v) of section 204(a)(1)(A), or classification under clause (ii), (iii), or (iv) of section 204(a)(1)(B), in any case in which there is a connection between--

(1) the alien's having been battered or subjected to extreme cruelty; and

(2) the alien's--

(A) removal;

(B) departure from the United States;

(C) reentry or reentries into the United States; or

(D) attempted reentry into the United States (US 1952).

The above-cited article was added to Section 212 of the INA by way of the 1996 United States Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (US 1996, Sec. 301). In a discussion of IIRIRA, Siskind Susser Immigration Lawyers, a United States-based immigration law firm with experience in American immigration and nationality law (Siskind Susser n.d.a), wrote that "the time counted towards the bars [on return to the United States] will only begin to be counted after April 1, 1997" (ibid. n.d.c). Chang & Boos, "an internationally recognized law firm practicing exclusively in the field of United States and Canadian immigration" (Chang & Boos n.d.b), also stated that Article 9 of Section 212 of INA became effective on 1 April 1997 (ibid. n.d.a). In a summary of Section 212 of INA, Chang & Boos explained that

...any other alien who has been ordered removed under INA 240 or any other provision of law [a deportation proceeding] or departed from the United States while an order of removal was outstanding and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. The previous bar for deportation was five years unless the person was convicted of an aggravated felony in which case it was 20 years...The new INA 212(a)(9)(B)(i)(II) provides that any alien who has been unlawfully present in the United States (presence in the United States after the expiration of lawful status or presence in the United States without being admitted or paroled) for 12 months or more is excludable for 10 years (ibid.)

Similarly, Siskind Susser Immigration Lawyers wrote in their discussion of IIRIRA that "[t]hose who are unlawfully present in the US for more than a year are barred from being admitted in any legal status for ten years" (Siskind Susser n.d.b).

Information on the application of Article 9 of Section 212 of INA in the case of Indian nationals in 2002 could not be found among the sources consulted by the Research Directorate.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.

References

Chang & Boos. N.d.a. "Exclusion of Previously Removed or Unlawfully Present Aliens." < http://www.americanlaw.com/exclud9A.html> [Accessed 7 Mar. 2006]
_____. N.d.b. "Firm Overview." [Accessed 7 Mar. 2006]

Siskind Susser Immigration Lawyers. N.d.a. "About Siskind Susser." [Accessed 7 Mar. 2006]
_____. N.d.b. "IIRIRA 96 – A Summary of the New Immigration Bill." [Accessed 7 Mar. 2006]
_____. N.d.c. "Subtitle A – Revision of Procedures for Removal of Aliens." [Accessed 7 Mar. 2006]

United States (US). 1996. Illegal Immigration Reform and Immigrant Responsibility Act of 1996. (IIRIRA) [Accessed 13 Mar. 2006]
_____. 1952. Immigration and Nationality Act. (INA) (Updated through 10 Nov. 2005) [Accessed 6 Mar. 2006]

Additional Sources Consulted

Oral sources, including: Embassy of United States of America in Ottawa, United States Citizenship and Immigration Services (USCIS).

Internet sources, including: Factiva, FindLaw, Global Legal Information Network, United States Citizenship and Immigration Services (USCIS), United States Immigration and Customs Enforcement (USICE).