As part of our efforts to amplify the AILA Law Journal, author Martin Robles-Avila shared some insights from his recent article published in the November, 2022 edition of the AILA Law Journal, “At Long Last, USCIS Meets the Moment: A Brief History of the Unlawful Presence Bars” in which he dives into where things stand on these bars which impact so many individuals.
Suspend disbelief for a moment and pretend it is still 2021: now, ask any immigration attorney you stumble upon to explain what the 3/10 year bars are. Almost all of them will respond with some version of this: departing the U.S. after a period of unlawful presence–whatever that is–results in a 3- or 10-year period of exile–unless a waiver is granted. If pressed, most would also confidently affirm that the barred period must be spent outside of the U.S. Otherwise, what’s the point of calling them “bars”? After all, they are triggered by a departure, so what else could they mean?
If you thought that, you’d be in (sort of) good company. Until late June 2022, almost all U.S. Citizenship and Immigration Services (USCIS) offices and the Administrative Appeals Office (AAO), its highest administrative body, interpreted the bars in this way, requiring noncitizens affected by them to spend those years abroad. And even if you returned to the U.S. lawfully on a nonimmigrant visa with a 212(d)(3) waiver, or parole, you would still be found inadmissible for failure to spend those years outside.
Now, say you want to interrogate the statutory text to unravel this–does the statute actually say that? Well, first, good luck: you don’t read §212(a)(9)’s provisions, as much as hack your way through them like dense brush; they are singularly inelegant, to put it kindly. While researching and writing this article, I printed a copy of the statute and pinned it to my wall; I read it every day, repeatedly, for several months, surely several hundred times over.
Something happens when you read text over and over and over…while initially, its meaning may subtly blur and bewilder; eventually, there’s almost nowhere for ambiguity to hide. And this is where to my mind, no “outside of” requirement could be found. So, why was the AAO interpreting it in this way? This was the question that impelled me to write the article, initially as little more than a way to advise clients raising these vexing questions.
After recurrent readings, I found it impossible to come away with a reading of §212(a)(9) that supports the notion that the bars must be served outside the U.S. The unlawful presence provisions simply do not say anything about where you have to spend that time. Equally importantly, the permanent bar, located just one subsection south, does explicitly require you to spend the entire 10 years outside the U.S.
So, if the same rule applies to the 3/10 year bars, why do they not actually say that? And if they don’t say that, isn’t that pretty good evidence it’s not required? Yet, even in decisions as recent as November 2021, the AAO concluded the entire period had to be served outside the U.S., ostensibly based on “the terms and intent” of the statute.
Since the plain text was insufficient for the AAO, I dug deeper to see if legislative history could offer some insight. I was taken aback by the content of the original bill that first mentioned unlawful presence, the dubiously styled, Immigration in the National Interest Act of 1995, because it did in fact require the noncitizen remain outside for a period of 10 years for violations of unlawful presence of more than one year in the aggregate. (Don’t believe me? See for yourself at pages 41 and 42).
That version, of course, did not survive the gauntlet of bicameralism and presentment: combined with the plain text of the current version of the statute, I was convinced the outside of the U.S. requirement was not only wrong, but undeniably wrong. Yet, I could find no mention of the original bill in any opinions or decisions, published, unpublished, or administrative.
Within several days of completing the draft for submission to AILA Law Journal, USCIS made its announcement in connection with the class action filed by Northwest Immigrant Rights Project (cited in the original draft), that it was backing away from that flawed interpretation, so, I rewrote and submitted it.
Immigration law is often inexorable and like Walt Whitman, contains multitudes: better to go to war with all the weapons you can stockpile—textualism, canons of construction, policy context, legislative history. This is especially so with Justice Kagan disavowing, in a forceful dissent, her famous remark, “[w]e’re all textualists now” and the “arrival” of the major questions doctrine, “magically appear[ing] as [a] get-out-of-text-free card[ ].” West Virginia v. EPA, 597 U.S. ____ (2022) (Kagan, J., dissenting). And while I don’t call upon the gods for a return to a strict focus on legislative history, generally unkind in the immigration sphere, I will take it with me to the next skirmish.
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