The Statutory Bars to Reentry into the United States
August 30, 2023
The Statutory Bars to Reentry into the United States
Federal immigration laws set forth the conditions under
Subsection (I), aliens who were unlawfully present in the
which aliens (as defined in 8 U.S.C. § 1101(a)(3)) may
United States for more than 180 days but less than one year,
enter or remain in the United States. Aliens applying for a
and who voluntarily departed the United States before the
visa from abroad, presenting themselves at U.S. ports of
commencement of expedited or formal removal
entry, or found in the country after entering unlawfully,
proceedings, are inadmissible for 3 years after the date of
may be denied admission if subject to grounds of
departure.
inadmissibility listed in 8 U.S.C. § 1182(a). In particular,
under § 1182(a)(9), aliens who have been removed from the
Under Subsection (II), aliens who were unlawfully present
United States or accrued unlawful presence in the United
in the United States for 1 year or more are inadmissible for
States and either departed or were removed are thereafter
10 years after the date of departure or removal. Unlike the
inadmissible for specified time periods.
3-year bar, the 10-year bar applies even if the alien left the
United States after removal proceedings had commenced.
Historical Background
Federal immigration laws have long barred aliens
8 U.S.C. § 1182(a)(9)(B)(ii) explains that an alien is
previously removed from the United States from being
considered “unlawfully present” if the alien “is present in
admitted into the country for specified periods of time. The
the United States after the expiration of the period of stay
current reentry bars found in 8 U.S.C. § 1182(a)(9) were
authorized by the [Secretary of the Department of
added by the Illegal Immigration Reform and Immigrant
Homeland Security (DHS)] or is present in the United
Responsibility Act of 1996 (IIRIRA). IIRIRA amended the
States without being admitted or paroled.” Under DHS’s
reentry bars by including aliens who accrued unlawful
policy, an authorized “period of stay” includes, among
presence in the United States, making some returning aliens
other things, a period in which an alien is admitted under a
permanently inadmissible, and establishing several
nonimmigrant visa; has a pending adjustment of status
exceptions and waivers.
application filed with DHS; has been granted asylum or
refugee status; has been granted a stay of removal or
The Current Statutory Regime
voluntary departure; has been granted deferred action (e.g.,
under the Deferred Action for Childhood Arrivals
Aliens Who Were Previously Removed
program); and has a pending application for temporary
Under 8 U.S.C. § 1182(a)(9)(A), certain aliens who were
protected status.
previously removed from the United States are
inadmissible. Under Subsection (i), any alien who was
The unlawful presence period is only calculated during a
removed after being placed in expedited removal
single stay in the United States and is not counted in the
proceedings or following the completion of formal removal
aggregate by combining periods of unlawful presence
proceedings that were initiated upon the alien’s arrival at a
accrued during multiple stays in the United States. Further,
U.S. port of entry is inadmissible (1) for 5 years after the
only unlawful presence periods occurring after IIRIRA’s
date of removal; (2) for 20 years after the date of removal if
April 1, 1997, effective date can be considered. See Matter
the alien has previously been removed two or more times;
of Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006).
or (3) at any time if the alien was convicted of an
aggravated felony (as defined in 8 U.S.C. § 1101(a)(43)).
The 3- or 10-year period runs from the date of departure or
removal without interruption, and an alien who accrued
Under Subsection (ii), an alien not described in Subsection
unlawful presence and seeks admission after the requisite
(i) and who has either been removed upon the completion
period runs is not inadmissible, even if the alien had
of formal removal proceedings (or some other type of
returned to the United States during the 3- or 10-year
removal process) or has departed the United States while an
period. The alien’s return during the 3- or 10-year period
order of removal was outstanding is inadmissible (1) for 10
could result in the accrual of a new unlawful presence
years after the alien’s departure or removal; (2) for 20 years
period. See Matter of Duarte-Gonzalez, 28 I. & N. Dec. 688
after departure or removal in the case of a second or
(BIA 2023).
subsequent removal; or (3) at any time if the alien was
convicted of an aggravated felony.
Section 1182(a)(9)(B)(iii) provides that certain periods of
physical presence do not count toward the accrual of
Aliens Who Accrued Unlawful Presence
unlawful presence. These include periods when an alien is
Under 8 U.S.C. § 1182(a)(9)(B)(i), aliens (other than an
under 18; has a pending “bona fide” asylum application
alien lawfully admitted for permanent residence [LPR])
(unless the alien worked without authorization during that
who accrued unlawful presence in the United States before
period); or was the beneficiary of family unity protection
their departure or removal are inadmissible. Under
pursuant to statutes.
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The Statutory Bars to Reentry into the United States
Additionally, under § 1182(a)(9)(B)(iii), the reentry bars do
the DHS Secretary’s decision whether to consent to an
not apply to an alien self-petitioning for a visa under the
application for admission is based on various factors,
Violence Against Women Act (VAWA), based on evidence
including, among others, the recency and basis of the prior
the alien (or the alien’s child) has been domestically
removal, the alien’s length of U.S. residence, the alien’s
battered or subjected to extreme cruelty if there is a
moral character, the need for the alien’s services in the
substantial connection between the abuse and the violation
United States, evidence of hardship to the alien and others,
of the terms of the alien’s nonimmigrant visa. Nor do the
and the alien’s family responsibilities. See Matter of Tin, 14
reentry bars apply to a victim of a “severe form of
I. & N. Dec. 371 (BIA 1973).
trafficking” (as defined in 22 U.S.C. § 7102) if the
trafficking was at least one central reason for the alien’s
Section 1182(a)(9)(B)(v) authorizes the DHS Secretary to
unlawful presence in the United States.
waive the 3- and 10-year reentry bars applicable to those
who have accrued unlawful presence in the case of an alien
Under § 1182(a)(9)(B)(iv), a lawfully admitted or paroled
who is the spouse, son, or daughter of a U.S. citizen or LPR
alien with a pending and timely application for an extension
if the alien shows that denial of admission would result in
or change of nonimmigrant status, and who has not been
“extreme hardship” to the U.S. citizen or LPR spouse or
employed without authorization, may have, for purposes of
parent. An extreme hardship determination is based on
the 3-year bar only, an unlawful presence period “tolled”
several factors, including the alien’s family ties to the
for 120 days while the application is pending. Under DHS
United States, financial considerations, and health
policy, an alien does not accrue unlawful presence and is in
conditions. See Matter of Cervantes-Gonzalez, 22 I. & N.
an authorized “period of stay” for purposes of the 3- and
Dec. 560 (1999). If an alien who accrued unlawful presence
10-year bars (as well as for purposes of the permanent bar
is still in the United States, the alien may apply for a
under § 1182(a)(9)(C)(i), discussed below) during the entire
“provisional unlawful presence” waiver under
period the application is pending.
§ 1182(a)(9)(B)(v), allowing the alien to depart the United
States to obtain an immigrant visa abroad. 8 C.F.R.
Aliens Who Violate the Reentry Bar
§ 212.7(e).
Under 8 U.S.C. § 1182(a)(9)(C)(i), an alien who has been
unlawfully present in the United States for an aggregate
Section 1182(a)(9)(C)(ii) provides that the reentry bar
period of more than one year, or has been ordered removed
covering those who unlawfully enter the United States after
from the United States, and who enters or attempts to
prior removal or unlawful presence does not apply to an
reenter the United States without authorization is
alien seeking admission more than 10 years after the date of
permanently inadmissible. An alien who accrued less than
the alien’s last departure from the United States if the DHS
one year of unlawful presence and departed the United
Secretary “has consented to the alien’s reapplying for
States prior to a removal order is not inadmissible under
admission.” Additionally, under § 1182(a)(9)(C)(iii), the
this provision upon the alien’s reentry, but could potentially
DHS Secretary may waive this reentry bar in the case of an
be subject to the 3-year bar of § 1182(a)(9)(B)(i)(I).
alien who is a VAWA self-petitioner if there is a connection
between the abuse suffered by the alien and the alien’s
As under § 1182(a)(9)(B)(i), an alien is “unlawfully
removal, departure from the United States, or reentry or
present” under § 1182(a)(9)(C)(i) if present in the United
attempted reentry into the United States.
States after expiration of an authorized “period of stay” or
“without being admitted or paroled.” Unlike
Some classes of aliens may request waivers of the reentry
§ 1182(a)(9)(B)(i), however, the total period of unlawful
bars under other statutes. For example, 8 U.S.C.
presence for purposes of § 1182(a)(9)(C)(i) is calculated in
§ 1182(d)(3)(A) authorizes consular officers to waive most
the aggregate by adding all periods of unlawful presence on
inadmissibility grounds for aliens who seek to temporarily
or after April 1, 1997, regardless of whether they occurred
enter the United States with a nonimmigrant visa (e.g., as a
during a single stay or multiple stays in the United States. 8
tourist). This waiver requires examining the risk of harm to
U.S.C. § 1182(a)(9)(C)(i)(I).
society if the alien is admitted, the seriousness of the alien’s
past immigration or criminal violations (if any), and the
Additionally, § 1182(a)(9)(C)(i) does not contain
alien’s reasons for returning to the United States. See
exceptions to the reentry bars (e.g., if the alien was under
Matter of Hranka, 16 I. & N. Dec. 491 (BIA 1978).
18, had a pending “bona fide” asylum application, or was a
victim of a “severe form of trafficking”).
Another statute, 8 U.S.C. § 1159(c), authorizes the DHS
Secretary or the Attorney General to waive, for
Discretionary Exceptions and Waivers
humanitarian, family unity, or public interest reasons, most
Although aliens who have been removed from, or accrued
inadmissibility grounds with respect to asylees or refugees
unlawful presence in, the United States are inadmissible for
who are applying for adjustment to LPR status.
specified periods, 8 U.S.C. § 1182(a)(9) gives immigration
officials discretion to consider applications for admission or
Finally, 8 U.S.C. § 1182(d)(5)(A) authorizes the DHS
issue waivers to the reentry bars in some cases.
Secretary to temporarily “parole” into the United States an
inadmissible alien “for urgent humanitarian reasons or
Section 1182(a)(9)(A)(iii) provides that the reentry bars for
significant public benefit.”
those who were previously removed do not apply if the
DHS Secretary “has consented to the alien’s reapplying for
Hillel R. Smith, Legislative Attorney
admission.” Under long-standing administrative guidance,
IF12484
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The Statutory Bars to Reentry into the United States
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