Unlawful Presence - Now Also Applied to Minors!

We are reporting on concerning news regarding unlawful presence under INA Section 212(a)(9)(C) as applied to minors. We have learned that the U.S. Consulate in Ciudad Juarez, Mexico has made a significant change in the interpretation of unlawful presence as it relates to minors.

There has been a significant change in the interpretation of unlawful presence1 as it relates to minors by the U.S. Consulate in Ciudad Juarez, Mexico (“CDJ”) and perhaps other U.S. consulates, with devastating results. According to information obtained by AILA liaison, the Visa Office has directed the consulate at CDJ to cease applying the “minor exception” of INA §212(a)(9)(B)(iii)(1) to unlawful presence findings under INA §212(a)(9)(C)2, resulting in denial of immigrant visas to children under the age of 18, as well as denial of immigrant visas to adults who had unlawful presence and a re-entry as a minor. The Visa Office has declined AILA’s request for a copy of the instruction provided to CDJ. The Visa Office has further advised AILA that it is relying on a March 31, 1997, memorandum from Paul W. Virtue, then INS Acting Executive Associate Commissioner, which states that the “minor exception” does not apply to inadmissibility under INA §212(a)(9)(C).

INA §212(a)(9)(B)(i)3 imposes three- and ten-year bars upon foreign nationals who have accrued specific periods of time in the U.S. INA §212(a)(9)(B)(iii) provides a series of statutory exceptions to the period of time which can be counted toward an alien’s unlawful presence. The so-called “minor exception” is found there, and exempts from unlawful presence periods of time when the alien is under 18 years of age.4

In practice at CDJ, the “minor exception” has been applied to the INA §212(a)(9)(C) permanent bar for aliens who have been unlawfully present for an aggregate period of one year, or who have been ordered removed under INA §235(b)(1) and INA §240, or any other provision, who then returned to the U.S. without inspection. Previously, if an alien minor was in the U.S. unlawfully for one year, was then taken home, for example, to Mexico to see his grandparents, and was brought back into the U.S. without inspection, the permanent bar of INA §212(a)(9)(C) has not been applied. This makes sense because INA §212(a)(9)(B) defines unlawful presence for “this paragraph,” and states the exceptions.

Recently CDJ has been taking the position that the unlawful presence exception for minors does not apply to the permanent bar of INA §212(a)(9)(C), because the statutory exception is only listed under INA §212(a)(9)(B). As noted above, INA §212(a)(9)(C) does not include a definition of unlawful presence, but CDJ continues to “import’ that definition from §212(a)(9)(B) without applying the exceptions found therein.

This issue is being raised in with the relevant government agencies. Until a resolution is reached, minors, or those who had been unlawfully present in the U.S. as a minor, and thus, who fall under the newly-interpreted INA §212(a)(9)(C) bars, should not consular process, at least through CDJ, and perhaps at all. It is not known at this time if other U.S. consulates are applying this interpretation of the law, and if the same issue is present with the other exceptions to the unlawful presence bars found at INA §212(a)(9)(B)(iii).