Returning to the U.S. During a Ten-Year Bar After Removal

Attorney Answer

There is a lawful path back before the ten years run — it is called consent to reapply for admission — but it is discretionary, it has to be granted before he travels, and the ten-year bar is often not the only obstacle in the way.

Under INA § 212(a)(9)(A)(ii) [8 U.S.C. § 1182(a)(9)(A)(ii)], a noncitizen who has been ordered removed and who seeks admission within ten years of the date of departure or removal is inadmissible. (Clause (i) sets a five-year bar for people removed on arrival or through expedited removal; clause (ii) is the one that matches a ten-year bar.) The way out is clause (iii): clauses (i) and (ii) do not apply if, prior to reembarkation or attempted admission, the Attorney General has consented to the person reapplying for admission. The word "prior" is the whole point — permission has to exist before he travels, not be requested at the border.

The procedure is in 8 C.F.R. § 212.2, "Consent to reapply for admission after deportation, removal or departure at Government expense." It sets out who must obtain consent and the filing categories — nonimmigrant visa applicant, immigrant visa applicant, and adjustment applicant — and requires filing on the form designated by USCIS with the fee prescribed in the form instructions and 8 C.F.R. § 106.2. The application is commonly known as the I-212, but the regulation itself no longer names a form number, so confirm the current form and fee on the USCIS website before filing anything.

Two cautions, both important. First, consent to reapply is not a visa. It removes one bar; he still needs a visa category he actually qualifies for, and criminal grounds of inadmissibility can require their own separate waiver. Second, § 1182(a)(9)(A) is only one possible bar. Someone removed after several convictions may also face the unlawful-reentry provisions of § 1182(a)(9)(C), or a permanent bar tied to an aggravated felony. Neither was assessed here, and no one should spend money on a filing until all of them have been checked.

And the thing not to do: he must not attempt to enter without that consent in hand. Reentering after removal creates far worse and far longer-lasting problems than waiting does.

What you can do

1. Get his complete immigration record — the removal order, the charging document that began the case, and proof of the date and manner of his departure. A Freedom of Information Act request to the immigration agencies is the standard route if he does not have copies. 2. Get certified records of conviction for each of the four cases, including the exact code sections and sentences. 3. Have an immigration attorney identify every bar that applies before anything is filed, not just the ten-year one. 4. Identify the visa or adjustment path first. Consent to reapply under 8 C.F.R. § 212.2 is filed in connection with a visa or adjustment application, not on its own. 5. Confirm the currently designated form and fee on the USCIS website, and file on that form. 6. Build the discretionary record: family ties, hardship, rehabilitation, treatment records, and the time elapsed since the convictions. 7. Do not have him approach a port of entry or cross without consent granted in advance.