Initially, it should be noted that anyone who enters the Unites States illegally is committing a misdemeanor and can be sentenced to a fine or to six months in prison under federal law. However, anyone who reenters or attempts to renter the United States after having been removed or deported is committing a felony and will likely be permanently barred from the United States.
Moreover, in the absence of having an application for a waiver of inadmissibility granted, an individual who has been removed, “deported” from the United States is barred from reentry, or “admission” for a specific amount of time (five, ten, or twenty years), depending upon the facts and circumstances specific to that individual’s case. For example having a waiver application approved following an aggravated felony is extremely difficult. The term “aggravated felony” is defined under immigration law as, among other things, murder, sexual abuse of a minor, rape, drug trafficking, and illicit trafficking in firearms or destructive devices.
Using Form I-212 to Request Reentry Following Removal
By properly filing USCIS Form I-212 with supporting documents and appropriate fee, a previously -deported alien requests permission to apply for entry before the required waiting time is complete. Form I-212 is called an “Application for Permission to Reapply for Admission into the United States after Deportation or Removal.” To have such an application granted, the alien will need to show numerous favorable factors outweigh any negative factors which may have led to his or her removal.
Several cases have held that an immigration violation alone should not be reason for an alien to be denied reentry, and that the waiver program is intended to provide aliens with “a second chance.” Because there is no “typical” case for reentry, nor specific eligibility criteria, each case is considered on its unique circumstances. The factors to be considered when deciding whether an alien’s application for re-entry have been set forth in prior decisions and are set forth below:
- length of time since the removal;
- length of legal residence in the U.S.;
- moral character of the applicant;
- applicant’s respect for the law;
- evidence of rehabilitation;
- family responsibilities of the applicant;
- other legal basis or inadmissibility, if any;
- hardship involved to the applicant and others; and
- need for the applicant’s services in the U.S.
Even though an approved the I-212 may waive the bar against admission based upon a removal or deportation order, it does not waive the underlying offense, if any, which resulted in the order having been entered. Any such underlying offense may have to be waived separately by properly filing form I-601.
Using Form I-601 to Request a Waiver of Inadmissibility
If an alien is independently inadmissible to the U.S. (in addition to the time bar based on your prior removal) for a certain behavior, s/he may also need to properly file Form I-601 along with his/her I-212, application for reentry. The name of Form I-601 is “Application for Waiver of Grounds of Inadmissibility.” Because there are many grounds for inadmissibility, the requirements for obtaining the particular waiver will vary depending on the reason for inadmissibility.
Retain An Experienced Immigration Attorney
Because applying to reenter the United States following removal and/or for a waiver of inadmissibility is extremely complicated, and far more difficult than applying to enter the United States for the first time, retaining an experienced immigration lawyer is strongly recommended and should greatly increase the likelihood of success.