Waiver of Removal Order (I-212)
Excluding the Trump Administrations, if you had a removal order, we used to be able to file “Requests for Prosecutorial Discretion” (PD requests) to the Assistant Chief Counsel (ACC) with Immigration and Customs Enforcement, Office of Chief Counsel of the Department of Homeland Security (ICE/DHS). In the courtroom, the ACC is the government attorney (prosecutor) who would question you at a hearing.
During the first Trump Administration, internal policy was implemented that instructed all ACCs to deny PD requests. That left all of us attorneys with only two realistic options to address the removal order, to either file a “Motion to Reopen” (MTR) with the immigration court, or, file a waiver with USCIS.
But MTRs are complicated and more importantly, have severe consequences. First, removal orders are “time-barred,” which means that an MTR must be filed within 90 days of the final removal order being issued. Second, MTRs are also “number-barred,” which means that you can only file one (1) motion to reopen. So if the judge denies it, you do not get another shot.
So, when we are trying to help reopen our client’s removal order, the first thing we do is see if the “time bar” applies. There are a few exceptions where the time-bar does not apply. A time bar does not apply if you were ordered removed “in absentia,” but this requires an explanation and evidence as to why you did not show up to court. For example, was it because your attorney never told you about it and the judge ordered you removed in your absence? However, if you chose not to go to court, you cannot simply say “I was scared to go.”
One way to get around the time-bar, and something we have done for decades, is to send a written request to the ACC to help us reopen the removal order. So when we submitted our PD requests, we would sometimes enclose a draft of the joint motion for the ACC to sign because is if the MTR is “jointly filed” by both the prosecutors and the defendant, then the immigration judge will ALWAYS grant the motion (100% guaranteed!). During the first Trump administration, many attorneys told their clients to “wait” because immigration judges were not granting MTRs. We can report that this was untrue; we filed a few MTRs during the first Trump Administration, and all of them were granted by the immigration judge. For some of them, the ACC did not respond, and the judge ruled in our client’s favor, in others, the ACC did not respond so the judge ruled in our favor, and in ONE of them, the ACC opposed our motion, but the judge still granted our motion! So we are very experienced when it comes to MTRs.
Now let’s say that the time-bar applies to your removal order. What can you do? One way to get around it is if there is a significant change in country conditions in your home country which would result in a legitimate asylum claim, which we did for one of our clients from Pakistan. A second option is if you are a battered spouse, child or parent of a green card holder or US citizen, which usually carries a one-year deadline (which may be excused under extraordinary circumstances). The third and last option to TRY and avoid the time-bar, we filed a Sua Sponte Motion to Reopen where we pled our client’s case (in writing and with evidence) and persuaded the immigration judge that it warranted being reopened; but these should only be used as a last resort because of their very stringent requirements. Note that with the exception of the joint motion, the ACC can submit a written “opposition” about why the motion should not be granted which can persuade the judge to deny the motion, or, the immigration judge could deny the motion simply based on his/her discretion. This is why those PD requests with joint motions were a golden opportunity!
So now we are the point that you have a removal order because either the immigration judge heard your case, didn’t believe you were eligible for the relief, and denied your application OR you accepted “Voluntary Departure” (VD) but never left and it has turned into a removal order. PD requests are no longer an option. Well that brings us to your last-ditch effort of an “I-212 Waiver.”
If your denial notice mentions “212(a)(9)(A)(i) or (ii)” then it’s because you have been ordered removed and may not re-enter the US until you have been outside for a certain amount of time, or have filed an “application for permission to really for early admission” (212 waiver) which allows them to re-enter the US before being abroad for the statutorily required period of time.
If you have unlawful presence of more than one year, OR, have been ordered removed, and then leave the US, then EITHER re-enter the US, or, ATTEMPT to re-enter the US without a waiver, you are “permanently barred.” They are allowed to apply for a 212 waiver BUT can only apply AFTER they leave the US and remain abroad for TEN (10) years before applying for the 212 waiver. It IS possible to countdown the 10 years if you obtain a nonimmigrant visa and lawfully enter the US.
Example: Mario flees his native country of Guatemala due to the dangerous crimes. He arrives the Texas-Mexico border and makes it across undetected by CBP. After two years, Mario finds out his mom is dying of cancer. He boards the first flight back to Guatemala and his mom dies 5 days later. Mario cannot bear the bitter memories in Guatemala so he makes his way back into the US without being apprehended. Mario needs a 212 waiver because he departed the US after having more than 1 year of unlawful presence, then re-entered the US illegally again (two entries without inspection).
Example: Maria enters the US illegally with her child. She marries a US citizen, Terrance. Five years later, ICE catches Maria and her son and puts them into removal proceedings. She applies for asylum, but the judge denies her case. Maria decides to leave her child with her husband. She buys a ticket and leaves the US. One month later, she pays a coyote to bring her back into the US so she can be reunited with her child. She makes it across successfully. Maria is subject to the permanent bar; she must wait outside of the US for 10 years before applying for a 212 waiver.
The 212 waiver has several benefits. First, if approved, it waives all previous illegal entries, so in Mario’s example above, if he applies for a 212 waiver, it would waive both illegal entries. A second benefit is that waiver can be used for nonimmigrant visas AND immigrant visas, so those applying for temporary entry, or those applying for an immigrant visa (which upon entry triggers a green card). A third benefit of a 212 waiver is that it does not require any “qualifying family members” (which the 601 waiver does require). Some strong points that we argue for our clients are:
- The circumstances of the deportation
- How recent the deportation was
- How long the client lived in the US
- Family relationships in the US
- Community ties in the US
- Financial ties in the US
- The client’s respect for the law
- If the client did do something bad, proof of rehabilitation
- Hardship involving our client and others
- Any benefits or contributions that the client can make to the US
- Whether the client has an approved immigrant petition or nonimmigrant visa
- The client’s good moral character
What can hurt your chances are multiple immigration violations (e.g. working illegally, multiple illegal entries, and any other inadmissibility issues (fraud, criminal convictions, etc.).
Example: Cristian was brought to the US illegally by his mother when he was 17 years old. They are caught by Border Patrol and his mother explains that they cannot return to Cuba because they will be killed because Cristian is gay and the gangs attacked and tried to kill him. The CBP officer conducts a “credible fear interview” and believes that their claim is legitimate, so she allows them to file an asylum case with the immigration judge. After a 2-day hearing, the judge denies Cristian’s asylum case and issues an order of removal for both of them. Cristian and his mom immediately return to their home country of Peru. Now 20 years old, Cristian is jumped walking home from his job as a waiter. Cristian travels to the US alone, fearing for his life, and makes it without being detected by CBP. Cristian enrolls in an ESL course and then college where he graduates with a degree in Mathematics. He begins working as a Professor at a university for 5 years. Ten years later, he marries, Adam, a US citizen, while at a holiday party. Adam is a veteran and suffers from PTSD. The couple files an immigrant petition (Form I-130) and it is approved. There are several strong factors in this case, including an approved I-130, only deported one time, no criminal record, no other significant immigration violations, obtained an education, and can prove hardship to Adam who suffers from PTSD.
Example: Jorge was brought to the US illegally at 4 years old with his aunt. They make it across the boarder but are apprehended on a bus traveling from Arizona to New York. They are put into removal and have a court date, but Jorge’s aunt decides not to go to court for fear of being deported. When they don’t show up to court, the judge orders them removed in absentia. Jorge attends elementary school, high school, college where he graduates with an Accounting Degree, and completes a Master’s Degree in Business Administration. He lands a coveted position as a Financial Analyst job with Goldman Sachs where he works for 5 years. He then lands a position as a Financial Advisor for a small investment firm that was going under. While there he is promoted three times in 5 years because he brings in the highest amount of money for his clients and the company. Jorge’s boss knows that without Jorge, their company could lose a lot of money so he sponsors him for an employment-based immigrant petition (Form I-140) which is approved.
But a few years later, Jorge he finds out that his grandmother is gravely ill, he flies home to Honduras. They are able to spend 3 months together and then she passes away peacefully in her sleep. Jorge sees that his family is in a bad financial condition after paying for the medical expenses and the funeral so he figures he can make better money in the US and send it home to his family. Jorge returns to the US illegally but undetected.
This case has several strong points. Jorge was brought to the US illegally as a child. He was ordered removed at age 4. He completes a bachelor’s and master’s degrees and obtains very good jobs. He does not have any criminal history. He has an approved immigrant petition filed by his employer and his employer would suffer financial hardship if Jorge had to return to Honduras.
NOW the ONE thing that you MUST be aware of is whether filing a 212 waiver will “put you on the record.” Well, if you do not do anything and you are caught by ICE, then ICE will “reinstate” the prior removal order, which means that you do not have the right to see a judge (unless you have a legitimate asylum claim) and they can put you on a plane to take you outside of this country.
WHAT IS A CONDITIONAL 212 WAIVER?
A conditional 212 waiver applies to a foreign national who has been ordered removed, BUT, never left the US.
The conditional I-212 waiver allows a foreign national to get permission in advance of their actual departure from the US. What actually makes someone inadmissible under 212(a)(9)(A)(i) is the DEPARTURE. This is similar to the I-601 waiver and unlawful presence. You can accrue unlawful presence, but it is only AFTER you leave that you trigger the 3-year or 10-year bars from re-entering the US.
Our advice, before you jump to file a 212 waiver is to schedule a paid consultation with us. Immigration law is always changing and you have to know the political climate not only when you apply, but also keeping in mind that it could be several years (and therefore a new administration) that actually DECIDES your case.
We stay aware of the ongoing USCIS trends, case law, and policies and regulations so we can always provide clients with the most up-to-date legal advice. Send us an email to schedule a consultation to see if an I-212 waiver is appropriate for you or your loved one.
