Criminal Defense of Immigrants

(G)  Unlawful Entry Following Removal.  Anyone who re-enters or attempts to re-enter the United States illegally after having been ordered removed is inadmissible.[145]  The Ninth Circuit has held that a noncitizen subject to this ground of inadmissibility may apply to adjust status under INA § 245(i) (i.e., the “LIFE Act”),[146] without regard to the statutory requirement that this ground of inadmissibility cannot be waived until 10 years have passed since the noncitizen’s most recent departure.[147]

Any combination of these grounds of inadmissibility may apply to a single person (for example, a person who departed the United States upon an outstanding order of removal, then illegally re-entered the United States and remained for more than a year before again departing and attempting to re-enter lawfully).  Note that some of these bars increase upon conviction and removal on the basis of an aggravated felony offense,[148] and others are not triggered until the noncitizen departs the United States.[149]

[145] INA § 212(a)(9)(C), 8 U.S.C. § 1182(a)(9)(C).

[146] Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004).  But see Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir. Nov 23, 2004) (disagreeing); Mortera-Cruz v. Gonzales, 409 F.3d 246 (5th Cir. May 9, 2005) (disagreeing); Lattab v. Ashcroft, 384 F.3d 8 (1st Cir. Sept. 14, 2004) (disagreeing); Lino v. Gonzales, 467 F.3d 1077 (7th Cir. Nov 6, 2006) (distinguished).

[147] INA § 212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii).

[148] INA § 212(a)(9)(A), 8 U.S.C. § 1182(a)(9)(A).

[149] See, e.g., INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B).