Summary:
On February 14, 2023, the Board of Immigration Appeals held that noncitizens who are inadmissible for a specified period of time pursuant to § 212(a)(9)(B)(i) of the Immigration and Nationality Act due to their previous unlawful presence and departure are not required to reside outside the United States during this period in order to later overcome this ground of inadmissibility.
Details:
The petitioner, a native of Mexico, was admitted to the U.S. in 2000 and was authorized to stay for a temporary period not to exceed 30 days. However, the petitioner did not depart the U.S. until August 2001. Then, the petitioner was admitted to the U.S. later in August 2001 on a nonimmigrant visa with permission to stay for a period not to exceed 30 days. After that admission, the petitioner never left the United States. Petitioner then tried to adjust status under INA § 245(a).
The Immigration Judge denied petitioner adjustment of status and petitioner appealed the decision. The Immigration Judge considered whether the petitioner was eligible for adjustment of status because his U.S. citizen son, who was 21 years old, could file an I-130 Form for petitioner, commonly known as the Petition for Alien Relative. The Immigration Judge found that the petitioner was not eligible for adjustment of status because he did not remain outside the United States during the entire 10-year period of inadmissibility.
The Board concluded that noncitizens who are inadmissible for a specified period of time pursuant to section 212(a)(9)(B)(i) of the INA 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. The Board held that because petitioner departed the United States in August 2001 and more than 10 years had elapsed since that departure, he was not inadmissible under section 212(a)(9)(B)(i)(II) of the INA, and therefore, not prohibited under the section from seeking adjustment of status.
Why It Matters:
This decision provides clarity for petitioners who are inadmissible due to their previous unlawful presence and departure, making clear that they are not required to reside outside the U.S. during this period in order to overcome this ground of inadmissibility when later attempting to adjusting status under INA § 245(a).