BIA Holds That Noncitizens Who Are Inadmissible For A Specified Period Of Time Pursuant To INA § 212(a)(9)(B)(i), Due To Their Previous Unlawful Presence And Departure, Are Not Required To Reside Outside The United States During This Period In Order To Subsequently Overcome This Ground Of Inadmissibility.
Respondent was admitted to the U.S. in June 2000 and authorized to remain for 30 days; he departed in August 2001. He was readmitted later that month for another 30 days. Since that entry, he has remained in the U.S.
Petitioned by his adult U.S. citizen son, Respondent applied for adjustment of status (AOS) before the Immigration Judge (IJ), who found Respondent ineligible for AOS because he had not remained outside the U.S. during the entire 10-year period of inadmissibility per INA § 212(a)(9)(B)(i)(II). The IJ concluded, among other reasons, that requiring Respondent to remain outside for the 10-year period was “analogous to the requirement that noncitizens applying for consent to reapply for admission after deportation or removal remain outside the U.S. for the time period for which they are inadmissible unless the application for consent to reapply for admission is granted during that period of inadmissibility.” The IJ also stated that Respondent was ineligible to apply for a waiver of inadmissibility because he did not have a qualifying relative.
On appeal, Respondent argued that the IJ had erred in finding him ineligible for AOS because of his inadmissibility under INA § 212(a)(9)(B)(i)(II), contending that, based on a plain reading of the statute, it is not required that a noncitizen remain outside the U.S. for the 10-year period of inadmissibility. DHS opposed the appeal.
Initially, the BIA noted that § 212(a)(9)(B)(i)(II) mandates that any noncitizen (other than a lawful permanent resident) who is unlawfully present in the U.S. for a year or more and who seeks readmission within 10 years of his or her departure or removal, is inadmissible. Additionally, the term “admission” refers to both AOS within the U.S. and a lawful entry at the border. On its face, the statute “does not state whether a noncitizen subject to the 10-year bar must remain outside the United States during that entire period of inadmissibility.”
The opinion then explained that the Board had previously interpreted § 212(a)(9)(B) as creating temporary 3- and 10-year bars to a noncitizen’s admissibility following an exit from the U.S. after unlawful presence of over 180 days (3-year bar) or 1 year or more (10-year bar) in Matter of Rodarte 23 I&N Dec. 905 (BIA 2006). There, it contrasted § 212(a)(9)(B)’s periods of temporary inadmissibility with the permanent inadmissibility created by § 212(a)(9)(C)(i) but had “not addressed in a precedent decision whether a noncitizen must remain outside the United States for the relevant period of inadmissibility.” The BIA now concluded that the plain language of § 212(a)(9)(B)(i)(II) did not require Respondent to remain outside the U.S. during his 10-year period of inadmissibility.
The decision next noted the Board’s duty “to follow the plain and unambiguous language of the statute,” stating that a “plain-text reading” of the statute indicated that the period of ineligibility runs from the date of departure from the U.S. and does not require a noncitizen to remain abroad for the entire 10 years. This interpretation was further supported by the fact that the adjacent subsection of § 212(a)(9) contains a requirement that the noncitizen spend time “outside of the United States” in other circumstances, citing to § 212(a)(9)(B)(i)(II).
Of note, the IJ has cited a regulation requiring a period of time outside the U.S. for those deported or removed, but that did not support the conclusion that § 212(a)(9)(B)(i)(II) required the same; that regulation, stated the BIA, did not implement or correspond to any provision of § 212(a)(9). Further, the plain language of the regulation required time abroad after deportation or removal but Respondent had been neither deported nor removed. Thus, held the Board, noncitizens who are inadmissible for a specific period of time per § 212(a)(9)(B)(i) due to their previous unlawful presence and departure are not required to reside outside the U.S. during this period in order to subsequently overcome this ground of inadmissibility.
As Respondent had departed the U.S. in August 2001 and more than 10 year had elapsed since that exit, he was not inadmissible per § 212(a)(9)(B)(i)(II) and was not prohibited from filing for AOS. Because Respondent had filed previously-unavailable proof that his immediate relative I-130 immigrant visa petition had been approved, the record was remanded to the IJ to assess Respondent’s AOS eligibility in the first instance. Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023).