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Con gressionol Research Service
Informing the IegisIative debate since 1914
August 30, 2023
The Statutory Bars to Reentry into the United States
Federal immigration laws set forth the conditions under
which aliens (as defined in 8 U.S.C. § 1101(a)(3)) may
enter or remain in the United States. Aliens applying for a
visa from abroad, presenting themselves at U.S. ports of
entry, or found in the country after entering unlawfully,
may be denied admission if subject to grounds of
inadmissibility listed in 8 U.S.C. § 1182(a). In particular,
under § 1182(a)(9), aliens who have been removed from the
United States or accrued unlawful presence in the United
States and either departed or were removed are thereafter
inadmissible for specified time periods.
Historical Background
Federal immigration laws have long barred aliens
previously removed from the United States from being
admitted into the country for specified periods of time. The
current reentry bars found in 8 U.S.C. § 1182(a)(9) were
added by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA). IIRIRA amended the
reentry bars by including aliens who accrued unlawful
presence in the United States, making some returning aliens
permanently inadmissible, and establishing several
exceptions and waivers.
The Current Stati
iry Regime
Aliens Who Were Previously Removed
Under 8 U.S.C. § 1182(a)(9)(A), certain aliens who were
previously removed from the United States are
inadmissible. Under Subsection (i), any alien who was
removed after being placed in expedited removal
proceedings or following the completion of formal removal
proceedings that were initiated upon the alien's arrival at a
U.S. port of entry is inadmissible (1) for 5 years after the
date of removal; (2) for 20 years after the date of removal if
the alien has previously been removed two or more times;
or (3) at any time if the alien was convicted of an
aggravated felony (as defined in 8 U.S.C. § 1101(a)(43)).
Under Subsection (ii), an alien not described in Subsection
(i) and who has either been removed upon the completion
of formal removal proceedings (or some other type of
removal process) or has departed the United States while an
order of removal was outstanding is inadmissible (1) for 10
years after the alien's departure or removal; (2) for 20 years
after departure or removal in the case of a second or
subsequent removal; or (3) at any time if the alien was
convicted of an aggravated felony.
Aliens Who Accrued Unlawful Presence
Under 8 U.S.C. § 1182(a)(9)(B)(i), aliens (other than an
alien lawfully admitted for permanent residence [LPR])
who accrued unlawful presence in the United States before
their departure or removal are inadmissible. Under
Subsection (I), aliens who were unlawfully present in the
United States for more than 180 days but less than one year,
and who voluntarily departed the United States before the
commencement of expedited or formal removal
proceedings, are inadmissible for 3 years after the date of
departure.
Under Subsection (II), aliens who were unlawfully present
in the United States for 1 year or more are inadmissible for
10 years after the date of departure or removal. Unlike the
3-year bar, the 10-year bar applies even if the alien left the
United States after removal proceedings had commenced.
8 U.S.C. § 1182(a)(9)(B)(ii) explains that an alien is
considered unlawfully present if the alien is present in
the United States after the expiration of the period of stay
authorized by the [Secretary of the Department of
Homeland Security (DHS)] or is present in the United
States without being admitted or paroled. Under DHS's
policy, an authorized period of stay includes, among
other things, a period in which an alien is admitted under a
nonimmigrant visa; has a pending adjustment of status
application filed with DHS; has been granted asylum or
refugee status; has been granted a stay of removal or
voluntary departure; has been granted deferred action (e.g.,
under the Deferred Action for Childhood Arrivals
program); and has a pending application for temporary
protected status.
The unlawful presence period is only calculated during a
single stay in the United States and is not counted in the
aggregate by combining periods of unlawful presence
accrued during multiple stays in the United States. Further,
only unlawful presence periods occurring after IIRIRA's
April 1, 1997, effective date can be considered. See Matter
of Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006).
The 3- or 10-year period runs from the date of departure or
removal without interruption, and an alien who accrued
unlawful presence and seeks admission after the requisite
period runs is not inadmissible, even if the alien had
returned to the United States during the 3- or 10-year
period. The alien's return during the 3- or 10-year period
could result in the accrual of a new unlawful presence
period. See Matter of Duarte-Gonzalez, 28 I. & N. Dec. 688
(BIA 2023).
Section 1182(a)(9)(B)(iii) provides that certain periods of
physical presence do not count toward the accrual of
unlawful presence. These include periods when an alien is
under 18; has a pending bona fide asylum application
(unless the alien worked without authorization during that
period); or was the beneficiary of family unity protection
pursuant to statutes.](ViewImageLocal?handle=hein.crs/govemrp0001&div=1&collection=&method=preview&ext=.png&size=3)
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