Making it back into the U.S. after being ousted is “irrelevant” to an illegal immigrant’s eligibility to apply for a new legal status, the Homeland Security Department’s citizenship agency says in a new policy.
In the past, U.S. Citizenship and Immigration Services would have denied the application under a law that required onetime illegal immigrants to wait outside the country for up to 10 years before they would be eligible to apply to come back legally.
Experts said the policy now says the law doesn’t require a wait elsewhere as long as the immigrant doesn’t pop up on Homeland Security’s radar during the waiting period.
“This is like the ‘don’t ask, don’t tell.’ We won’t ask you where you’ve been during your inadmissible period, and you don’t tell us. It’s sheer craziness,” said Emilio Gonzalez, who ran USCIS during the George W. Bush administration.
At issue is the three-year/10-year bar to admissibility, which is supposed to deter immigrants from trying to live in the country illegally.
Under the three-year/10-year bar, someone who was in the U.S. without legal status for at least six months but less than a year must depart and wait three years before applying to come back legally. Someone in the U.S. without authorization for more than a year must leave and wait 10 years before applying and being deemed admissible.
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USCIS previously assumed migrants were supposed to wait outside the U.S. during the bar, Mr. Gonzalez said. Those who returned before their time was up would be denied.
The new policy says that’s no longer the case.
The policy, dated June 24, says the “noncitizen’s location during the statutory 3-year or 10-year period and the noncitizen’s manner of return to the United States during the statutory 3-year or 10-year period are irrelevant for purposes of determining inadmissibility.”
The policy appears to apply retroactively. Would-be migrants who were denied based on location at the time of application can file motions to reopen their cases.
A footnote says the “manner by which the noncitizen returns … may result in the accrual of a new period of unlawful presence.”
In a statement to The Washington Times, USCIS said someone who left and then sneaked back into the U.S. illegally could still be blocked by other sections of the law.
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“That individual is subject to an additional and more onerous ground of inadmissibility,” the agency said.
That didn’t mollify analysts, who said the overall thrust of the memo is to pursue leniency.
“This is basically an invitation for any deported alien to pay the cartels to smuggle them back into the U.S. while they let the clock run out,” said Rob Law, who headed the USCIS policy office in the Trump administration and is now director of the America First Policy Institute’s Center for Homeland Security and Immigration.
Rosemary Jenks, vice president at NumbersUSA, which advocates for stricter immigration controls, said if people are allowed to sneak back into the U.S. and live without losing their place in line, there’s no reason not to attempt it.
She pointed out that sneaking back into the U.S. after deportation is a felony, making government leniency an odd move.
“The entire point of the 3-year/10-year bar was to deter people from coming illegally, knowing they would not be able to get in legally for an extended period of time,” Ms. Jenks said.
The bar is applied relatively infrequently, and it’s not clear how many people the policy would affect.
USCIS said one reason for the new policy is to bring unity to its operations. The agency said it was aware of instances in which different offices reached different conclusions about how to apply the rules concerning an applicant’s location. The agency did not provide more details.
USCIS also said the change is in response to two federal district court rulings on the issue, though the agency acknowledged neither decision was binding.
One case involved a Japanese woman who entered the U.S. on a short-term visitor’s visa in 1996 and stayed until 2003, thus triggering the 10-year bar. She returned in 2005 and again overstayed, but eventually applied for status after marrying a U.S. citizen.
The judge ruled that the law says the 10-year bar runs from the time she departed, regardless of her return and subsequent overstay.
The other case involved a Brazilian man who came to the U.S. on a tourist visa in 1993. He overstayed and was ordered deported in 1994, but he didn’t leave until 2000. He managed to get another tourist visa in 2002 by hiding his previous illegal presence and has remained in the U.S. since.
He applied for permanent status in 2016, but USCIS said he was ineligible because of the 10-year bar, which should have been in place to prevent his second arrival.
The judge ruled that the illegal reentry doesn’t start the 10-year clock.
“I hold that an alien is inadmissible only during the 10-year period following his or her departure,” said Judge Kevin McNulty, an Obama appointee to the court in New Jersey. Still, he acknowledged it might amount to “bad policy.”
Ms. Jenks said the new USCIS policy may run afoul of the Administrative Procedure Act, which requires a public comment period before major policy changes are implemented. The act has repeatedly snagged the Biden administration’s immigration policy changes, just as it did for some of President Trump’s moves.
USCIS described the new rule as “policy guidance.” It said the policy manual had no language dealing with the matter.
Correction: An earlier version of this article misquoted Emilio Gonzalez about a period of inadmissibility for people who overstay visas.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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