Office of The District Director
Immigration and Naturalization Service
Western Region, Seattle District

815 Airport Way South
Seattle, WA 98134

SEA 120/10.17

July 15, 1999

Janet Holste Cheetham
Attorney at Law
AILA-INS Liaison Chairperson
Mundt, MacGregor, Happel et al
First Interstate Center
999 Third Avenue, Suite 4200
Seattle, WA 98104-4082

Dear Ms. Cheetham

Re: Submission of Form I-212, Application for Permission to Reapply

I am writing to inform your membership of the policy being adopted by this district of the United States Immigration and Naturalization Service. As you may be aware, the Seattle District has been struggling for some time to obtain clarification of the effect of Public Laws: P.L. 101-649, The Immigration Act of 1990 (IMMACT-90), P.L. 104-132, The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and P.L. 104-208, The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) on the submission and adjudication of Form I-212, Application for Permission to Reapply. We have been in contact with Headquarters and the Regional Office for guidance, and have carefully studied all aspects of this matter. We have been informed that the final and complete regulations implementing Section 305 of IIRIRA have not been published as of this date.

Barring the publication of regulations establishing otherwise, it is the interpretation of this district that an Application for Permission to Reapply on Form I-212 must be filed by an alien, while the alien is abroad, at a U.S. Consular post abroad, and that an alien previously deported is not entitled to any adminsitrative relief from Reinstatement of Removal pursuant to Section 241(a)(5). The US Consulate, in turn, will forward the I-212 to the appropriate office for adjudication.

The prohibition against administrative relief mandates ineligibility for adjustment of status under Section 245(i), even if the alien would otherwise be grandfathered in under Service Policy. This decision is based on what we believe is a clear and transparent reading of the laws bearing on this issue, and on extensive discussions and review of our policy by Headquarters and Regional Counsels and program managers.

It is our further policy that, in conformity with the apparent will of Congress, we will no longer accept Form I-212 Application for Advanced Permission to Reapply filed in behalf of an alien while in removal proceesings. Such applications are also more appropriately filed with consular officers abroad after removal has been effected. (Emphasis Supplied)

Public Law 101-649(a)(6)(A) states in pertinent part "Aliens previously deported. Any alien who has been excluded from admission and deported and who again seeks admission, unless prior to the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory the Attorney General has consented to the alien's reapplying for admission.

It is our reading that the above section of law indicates that the alien must submit the I-212 prior to embarkation or reembarkation, which means the alien must be outside the United States when the I-212 is filed. Further:

Public Law 104-208 Section 301(b)(1)(9)(A)(ii)(iii) states in pertinent part... Prior to the date of the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.

Public Law 104-208 Section 301(c)(1)(ii) further states...prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.

Section 241(a)(5) states "Reinstatement of removal orders against aliens illegally reentering. If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry. (IIRIRA) P.L. 104-208, effective 9-30-96, Div. C, Sec. 305(C) 110 Stat. 3009. (Emphasis supplied)

The inclusion of identical wording in four (4) different sections of three (3) different laws by the Congress of the untied States must be considered a significant mandate. This bar is propsective for all previously removed aliens who seek relief. Section 212(a)(9)(A)(ii)(1) details classes of aliens that are ineligible for visas or admission as a result of previously being ordered removed. Section 212(a)(9)(A)(iii) requires that the alien obtain a waiver prior to the alien's reembarcation at a place outside of the United States.

It should also be noted that an order of removal may be reinstated if either INS previously executed it or the alien voluntarily departed while the order was in effect (.i.e., self-removal or self-deport). INA sec. 241(a)(5), 8 U.S.C. sec. 1231 (a)(5). (Emphasis Supplied)

An alien who illegally reentered the U.S. after being removed in ineligible for adjusment of status, even if grandfathered under INA sec. 245(i). The reinstatement statute's bar on any relief post dates and supersedes INA sec. 245(i) for aliens previously removed who illegally reenter. Morever, any alien seeking to adjust under Section 245(I) must be admissible to the Untied States for permanent residence. INA sec. 245(I)(2)(A), 8 U.S.C. sec. 1255(I)(2)(A). (Emphasis Supplied)

1. An alien previously removed is inadmissible under INA sec. 212(a)(9)(A), as an alien previously removed.
2. An alien previously removed is inadmissible under INA sec. 212(a)(9)(C), as an alien unlawfully present after previous violation, if the alien reentered the U.S. on or after April 1, 1997.
3. An alien previously removed may also be inadmissible udner INA sec. 212(a)(9)(B), as an alien unlawfully present in the U.S.

Regulations allowing an alien to adjust status, through Attorney General consent to the alien's application for admission after removal (Form I-212), apply only to aliens outside the U.S. aliens at a POE, or aliens paroled into the U.S. See 8 C.F.R. 212.2. Such regulations do not apply to aliens previously removed who have illegally reentered the U.S. INA sec. 241(a)(5), 8 U.S.C. sec. 1231 (a)(5).

Further, 8 CFR Part 212.2(d), Consent to Reapply for admission after deportation, removal or departure at government expense provides, in pertinent part:

Applicant for immigrant visa. If the applicant also requires a waiver under section 212(g), (h), or (i) of the Act, Form I-601, Application for Waiver of Grounds of Excludability, must be filed simultaneously with the Form I-212 with the American Consul having jurisdiction over the alien's place of residence. The consul must forward these forms to the appropriate Service office abroad with jurisdiction over the area within which the consul is located. (Emphasis Supplied)

This section further supports our above interpretation, and also establishes that the Seattle District does not have jurisdiction to accept or adjudicate an I-212 when filed concurrently with an I-601. These applications must be adjudicated at the overseas office having jurisdiction over the consular area of jurisdiction where the alien is located.

Sincerely

/s/

Richard C. Smith
District Director

cc:

All DAOs and IIOs.
Ernestine Leslie, SDAO
David Srein, RAIS
WRO-ADN, Jim Booe
WRO-Regional Counsel
HQ- General Counsel
HQ-Associate Commissioner, Operations
HQ-Cathy Redman