USCIS Errors: Who Should Bear the Burden?

Is a person who was deported almost 30 years ago, and returned to the U.S. without inspection a year later subject to the permanent bar under the 1996 immigration law?

The 1996 law created the permanent bar to immigrating to the U.S.  Section 212(a)(9)(C)(i)(II) provides as follows:

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

(i) In general.-Any alien who-

...(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."

The question is whether or not this section of law is retroactive.

Our client, Mrs. Santiago (not her real name) entered the U.S., was deported, and then returned to the U.S. without inspection in the early 1980s. Did this subject her to the permanent bar? 

We think not, yet recently the USCIS denied her Application for Permission to Reapply for Admission to the United States After Deportation or Removal (Form I-212) on the grounds that a person who is subject to the permanent bar is ineligible to have an I-212 granted under two separate BIA decisions. However, neither of the cited decisions involves a person who was deported and then returned to the United States prior to the effective date of 1996 law.

We searched for the answer to this question on the new USCIS website.  First, we looked at the Neufeld memo of May 6, 2009 entitled "Consolidation of Guidance Concerning Unlawful Presence Under Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I)". However, since the portion of section 212(a)(9)(i) that allegedly makes Mrs. Santiago inadmissible is subsection II, rather than subsection I, the Neufeld memo did not answer our question. 

Next, we looked to the USCIS' Adjudicator's Field Manual for guidance.  We compliment the USCIS for posting a copy of the Manual online.  This saves immigrants and their attorneys from having to spend $150 to buy the book which contains the Manual.  Also, it is easier to navigate the online version of the Manual since it is searchable. 

We link to the USCIS Adjudicator's Field Manual from our "USCIS" page at 

http://shusterman.com/ins.html#1a

Unfortunately, the Manual also fails to deal with the issue of retroactivity of subsection II of the permanent bar.

So, is it possible to find an answer to our question on the Web?

We did a Google search, and found a several web sites (including our own) which contain an INS memorandum entitled "Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and Nationality Act (Act)" written by General Counsel Paul Virtue which answers our question.  See our "Unlawful Presence and the 3/10 Year and Permanent Bars" page at

 http://shusterman.com/bars.html#1

The Virtue memo states as follows: "Section 212(a)(9)(C)(i)(II) of the Act applies to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the United States unlawfully any time on or after April 1, 1997." Eureka!  The permanent bar is not retroactive and, therefore, does not apply to Mrs. Santiago.

We find it troubling that the Virtue memo is apparently absent from the USCIS' new website even though it is the only guidance regarding this issue emanating from the agency during the 13 years since the law was enacted.

The agency was no regulations which implement this section of law, and does not guide its officers as to the proper interpretation of the section 212(a)(9)(c)(i)(II) in its Adjudicator's Field Manual.

It is no wonder that the USCIS examiner mistakenly assumed that the permanent bar applied to Mrs. Santiago.  And, or course, the only way for the Service's mistake to be corrected is for Mrs. Santiago to pay the USCIS to file an appeal.

This is obviously unfair to Mrs. Santiago.  There must be a better way.

We suggest that

    (A) USCIS.gov be revised so that all policy memoranda appear on the website;

    (B) The Adjudicator's Field Manual be updated to reflect the guidance that was given to the field in 1997 by the USCIS' General Counsel's office; and

    (C) Where clear Service error results in a denial of benefits, that the filing fee be returned to the applicant.

 

Comments

[Angelo Paparelli]

Carl:

You are so right in your recommendations. For the last 5 years on my blog (www.nationofimmigrators.com), I've been urging the agency to follow the Administrative Procedures Act (APA) and publish proposed rules, allow public comment, and then issue final rules. Since they are not following the APA, the least they can do is maintain a full set of all policy memoranda.

[Mike Jones]

The following should establish to all that this provision of IIRIRA is permissively retroactive per the Supreme Court.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, enlarged the classes of inadmissible aliens. In a recent Supreme Court decision, Fernandez-Vargas v. Gonzales, 548 U.S. ___, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006), the Court devised a system of analysis to determine if a statute is impermissibly retroactive.

Statutes are disfavored as retroactive when their application would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. See Landgraf v. U.S.I Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In determining whether a statute has an impermissibly retroactive effect, the Court first looks to “whether Congress has expressly prescribed the statute’s proper reach,” Landgraf, supra, at 280, 114 S.Ct. 1483, and in the absence of language as helpful as that we try to draw a comparably firm conclusion about the temporal reach specifically intended by applying its “normal rules of construction,” Lindh v. Murphy, 521 U. S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). If that effort fails, the Court asks whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of “affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment,” Landgraf, supra, at 278, 114 S.Ct. 1483; see also Lindh, supra, at 326, 117 S.Ct. 2059. If the answer is yes, the Court then applies the presumption against retroactivity by construing the statute as inapplicable to the event or act in question. INS v. St. Cyr, 533 U. S. 289, 316, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); see Martin v. Hadix, 527 U. S. 343, 352 (1999) (quoting Landgraf, supra, at 280).
See Fernandez-Vargas, supra, 126 S.Ct. 2422.

Congress intentionally limited the scope of IIRIRA’s provisions as noted in § 301(b)(3) of IIRIRA:

In applying section 212(a)(9)(B) of the Immigration and Nationality Act, as inserted by paragraph (1), no period before the title III- A effective date [April 1, 1997] shall be included in a period of unlawful presence in the United States.

Congress placed no similar type of restrictions on § 212(a)(9)(C)(i)(II). Therefore, the Service can only conclude that Congress has not limited the reach of §212(a)(9)(C)(i)(I), and it is apparent that Congress’ intent was to be more restrictive on individuals who are repeat violators of United States immigration law as opposed to those who simply have accrued unlawful presence and subsequently departed the country.

The final consideration in the sequence of analysis is “whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment”. Landgraf, supra, at 278, 114 S.Ct. 1483. USCIS has no indication that a person's substantive rights are negatively affected by applying § 212(a)(9)(C)(i)(II) retroactively. Substantive rights are the rights that give individuals the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights such as freedom of speech and religion. In addition, the Service is unaware of any liabilities that would be incurred upon a person or duties that would be placed upon them were § 212(a)(9)(C)(i) to be applied retroactively. The Service therefore concludes that §212(a)(9)(C)(i) has no retroactive effect when applied to unlawful reentries prior to April 1, 1997, in accordance with Fernandez-Vargas, supra, 126 S.Ct. 2422.

As stated, under § 212(a)(9)(C)(i) of the Act any alien who has been ordered deported or removed and enters or attempts to reenter the United States without being admitted is inadmissible. No waiver is available to enable a person to overcome § 212(a)(9)(C)(i)(II).
Since those similarly situated are mandatorily inadmissible to the United States under § 212(a)(9)(C)(i)(II) and they are ineligible to apply for a waiver of this ground of inadmissibility, no purpose would be served in granting a Form I-212.

[Jason Abrams]

That memo is attached to to the online AFM at Appendix 40-1.

http://www.uscis.gov/ilink/docView/AFM/DATAOBJECTS/Appendix40-1.pdf