New CIS Appeals Office Decision on Permanent Bar Helps Those Who Entered Illegally Prior to 4/1/97

We all know about the dreaded permanent bar = the law that was implemented on 4/1/97 that said anyone who was illegally present in the US for a year or more or who had been deported and then tried to illegally re-enter after either of these could not come back to the US for ten years. No waiver. Period. In recent months, CIS has wanted to retroactively apply this law to those who re-entered illegally before 4/1/1997 - before the law was in place.  If a person illegally re-entered after the effective date of the law, even if the unlawful presence was before 4/1/97, current case law in the 9th Circuit says the permanent bar applies. But this week, the CIS  Administrative Appeals Office gave immigrants a break finally on the permanent bar with an unpublished decision  from December 29, 2011 (reposted on Aila.org).

The Field Office Director of the CIS San Francisco, California office had denied the Application for
Permission to Reapply for Admission into the United States after Deportation or Removal (Form 1-
212), and the Adjustment Application filed by a man whose brother was a USC and had an approved Immigrant Visa available to him based on this relationship.

This is the factual summary from the decision:

"The applicant was a native and citizen of Guatemala who initially entered the United States without inspection on or about March 29, 1985. He was taken into custody by U.S. immigration officials on March 30, 1985, and found to be subject to deportation for having entered the United States without inspection pursuant to section 241(a)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1251(a)(2). The Immigration Judge granted him voluntary departure to occur on or before October 10, 1985. However, the applicant did not leave the United States by October 10, 1985. Rather, he was deported to Guatemala at the expense of the U.S. government on October 11, 1985. And, he reentered the United States without inspection on or about November 30, 1989. Subsequently, on January 28, 2011, he filed an Application to Register Permanent Residence or Adjust Status (FOlm 1-485) as the beneficiary of a Petition for Alien Relative (Form 1-130) that was filed by his United States Citizen sibling and approved on June 30, 2005. The applicant concurrently filed Form 1-212. The applicant was found to be inadmissible (not eligible for a green card) because of 212(a)(9)(C) of the Immigration and Nationality Act - the permanent bar.

The AAO held that the San Francisco CIS Field Office incorrectly applied section 212(a)(9)(C) of
the Act as it only applies to applicants who were removed and then reentered the United
States on or after April 1, 1997. Since the applicant illegally re-entered before that date, he was eligible for his green card and was not subject to the permanent bar under section 2l2(a)(9)(C).

This is a great decision since this comes directly from CIS, itself (the AAO is the internal appeals office within the Department of Homeland Security).
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