In a precedential decision interpreting the unlawful presence bars at INA § 212(a)(9)(B)(i), the Board of Immigration Appeals, or Board has held that the three- and ten-year unlawful presence bars continue to run while a noncitizen is in the United States. Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023). The Board looked to the plain language of the statute in reaching its conclusion, while also finding persuasive the policy guidance issued by U.S. Citizenship and Immigration Services, or USCIS, in June 2022 that made the same determination.    

Summary of Facts and Procedural History   

Mr. Duarte-Gonzalez was admitted to the United States in June 2000 with authorization to remain for a period of 30 days. However, he did not depart the United States until August 2001, after he had accrued more than a year of unlawful presence. Mr. Duarte-Gonzalez was subsequently admitted to the United States later in August 2001 on a border crossing card with authorization to remain in the United States for a temporary period not to exceed 30 days. He has not departed the U.S. since his August 2001 admission.  

After being placed into removal proceedings, Mr. Duarte-Gonzalez argued that he was eligible for adjustment of status through his adult U.S. citizen son. However, the Immigration Judge, or IJ, determined that Mr. Duarte-Gonzalez was ineligible for adjustment of status because he was inadmissible under INA § 212(a)(9)(B)(i)(II). The IJ determined that Mr. Duarte-Gonzalez had triggered the ten-year unlawful presence bar by his departure in 2001 and was required to be outside the United States for at least ten years to overcome the bar. The Board disagreed with the IJ’s finding and determined that the unlawful presence bars at INA § 212(a)(9)(B)(i) do not require the person to remain abroad and can continue to run after he or she has reentered the United States.     

Analysis   

The Board looked to the plain language of the statute, which contains no requirement that the noncitizen remain outside the United States during the period of the three- or ten-year bar. Further, INA § 212(a)(9)(C)(ii), a separate statutory provision, does contain a provision specifying that a noncitizen must spend time “outside the United States” to overcome a separate bar. Since no such language is contained in INA § 212(a)(9)(B)(i), the Board reasoned that the statute did not intend for those inadmissible under this ground to spend any specified period outside the United States in order to overcome the bar. The Board also cited approvingly to USCIS policy guidance on the same topic, issued in June 2022, that similarly found that the bars continue to run while a noncitizen is in the United States. Based on this reasoning, the Board determined that the unlawful presence ground of inadmissibility had been overcome in Mr. Duarte-Gonzalez’s case. After noting that the I-130 petition filed on his behalf by his son had been approved while the appeal was pending, the Board remanded the case to determine his eligibility for adjustment of status, including whether he warrants such relief in the exercise of discretion.    

Implications for Practitioners   

The result in Duarte-Gonzalez is a positive development in that it may allow more noncitizens to qualify for adjustment of status. However, there are a limited number of factual scenarios in which a noncitizen is able to return to the United States after having triggered an unlawful presence bar but before the period of the bar has run. One such scenario is that of Mr. Duarte-Gonzalez — an individual who was admitted to the United States on a border crossing card without Customs and Border Protection realizing that he was inadmissible to the United States. Some noncitizens may also return pursuant to a grant of parole. Others may obtain nonimmigrant waivers of inadmissibility under INA § 212(d)(3).     

Practitioners must remember that those who accrue more than a year of unlawful presence, subsequently depart, and enter without inspection are subject to a separate ground of inadmissibility at INA § 212(a)(9)(C)(i), known as the permanent bar. Duarte-Gonzalez is inapplicable to these individuals, who must spend at least ten years physically outside the United States and seek permission to reapply to overcome this separate ground of inadmissibility. In addition, the ten-year bar for departing after a deportation/removal order must be spent abroad or waived, and that policy interpretation is not affected by this decision.