Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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Unlawful Presence?!

The Immigration and Nationality Act, the governing immigration law, provides that a person who has either (1) been unlawfully present in the United States for an aggregate (in total) period of more than year or (2) has been ordered removed from the United States and who "enters or attempts to reenter the United States without being admitted is inadmissible." This is known as the 10-year bar to readmission. The law further states that the above provision can only forgiven or waived in the discretion of the government if the alien in question has left the United States, remained abroad for 10 years, and applied for permission to reenter. See Immigration and Nationality Act § 212(a)(9)(C). In practice, this means that a person, who otherwise could get a green card through a family or employment sponsorship, cannot do so if she or he is guilty of the above violations.

The Court of Appeals for the Ninth Circuit (Ninth Circuit) has recently addressed the issue of the 10-year bar. See Carrilo de Palacios v. Holder, -F.3d-, 2011 U.S. App. Lexis 12469 (2011). The case dealt with the first provision of the 10-year bar, the unlawful reentry after a period of prior unauthorized stay in the United States. In Carrillo, a Mexican citizen was present in the United States without permission for three years between 1981 and 1984, following an illegal entry. She later came back without permission in 1992 and 1997.

In 2005, she was placed in removal proceedings where she applied for her green card. The Immigration Judge granted respondent Carrillo's application, but that decision was reversed on appeal. Specifically, the Board of Immigration Appeals (BIA) found that Carrillo could not get her green card because she was subject to the 10-year inadmissibility bar.

The case eventually made its way to the Ninth Circuit for review. Sadly, the Ninth Circuit agreed with the BIA. The Court found that respondent Carrilo was in fact inadmissible under the 10-year bar because she reentered the United States illegally in September 1997 after having lived in the United States without permission for three years between 1981 and 1984. While the current law does not punish individuals for having been in the United States without authorization prior to April 1, 1997 (the effective day of the Illegal Immigration Reform and Immigrant Responsibility Act), respondent Carrillo seemingly was penalized for exactly that.

In ruling against Carrillo, the Ninth Circuit explained that it was her 1997 illegal reentry that triggered the inadmissibility, "not the conduct of being unlawfully present for more than one year." In other words, Carrillo's "choice to reenter" after April 1, 1997 was the determining factor, and not her prior unlawful presence. However, for ostensible purposes, Carrillo was punished for having been in the United States unlawfully prior to April 1, 1997.

So does it mean for everybody else? It means the following. If a person is removed from the United States or has "accrued unlawful presence" for at least one year and then comes to the United States without permission, he or she may not be able to get a green card based on a family or employment sponsorship. Based on the Carrillo ruling, the government can now consider unlawful presence that has taken place at any time during the alien's life in the United States, even after April 1, 1997 despite its long standing policy that unlawful presence does not accrue until after April 1, 1997. This can have devastating effects on many people and their future immigration endeavors.

It is not clear at this point whether the Carrillo case will be appealed or modified in the near future. For the time being, it is a binding law that the U.S. Citizenship and Immigration Services (USCIS) have already started to follow in dealing with similar cases. This is troublesome especially since no formal guidelines have yet been published by the USCIS.

As far as we can tell, the holding of the case does not apply to individuals who have violated the immigration law on account of prior unlawful presence or removal, left the country, and returned to the United States with some type of permission. We will have to wait and see if new guidelines implementing the Carrillo case will be issued. In the meantime, if your situation is similar to the facts the case, please consider seeking legal advice before you apply for any immigration benefits. We are knowledgeable and experienced attorneys and we will be happy to help. Please feel free to contact us at 800-352-7034 or find up on the web at www.wilneroreilly.com if you need help.

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