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Illegal Entrants and Immigration Violators

Written by Henry J. Chang

Aliens Present Without Admission or Parole [Effective April 1, 1997.]

Under the new INA §212(a)(6)(A)(i), an alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible. An exception exists for certain battered women and children under the new INA §212(a)(6)(A)(ii).

Failure to Attend Removal Proceedings [Effective April 1, 1997.]

Under INA §212(a)(6)(B), any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien's in admissibility or deportability and who seeks admission to the United States within 5 years of such alien's subsequent departure or removal is inadmissible.

Fraud or Misrepresentation

Under INA §212(a)(6)(C)(i), an alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States or other benefit provided under the INA is excludable. The determination of materiality is a fact which would make an alien excludable or shut off a line of inquiry which may have resulted in exclusion.

A more restrictive immigrant waiver is authorized under the new INA §212(i)(1) in the case of an immigrant who is the spouse, son or daughter or a United States citizen or of an immigrant lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien. According to the new INA §212(i)(2), no court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under INA §212(i)(1).

Under the new INA §212(a)(6)(C)(ii), any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under the INA or any other Federal or State law is excludable. [This provision is applicable to representations made on or after September 30, 1996.] The immigrant waiver described above does not apply to this ground.

There is only one exception to INA §212(a)(6)(C)(ii), which was implemented by the Child Citizenship Act of 2000 ("CCA"). In the case of an alien making such a representation, if:

  1. Each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization);
  2. The alien permanently resided in the United States prior to attaining the age of 16; and
  3. The alien reasonably believed at the time of making such representation that he or she was a citizen;

the alien shall not be considered to be inadmissible under any provision of this subsection based on such representation.

Stowaways

An alien who is a stowaway is excludable under INA §212(a)(6)(D).

Alien Smugglers

Under INA §212(a)(6)(E), an alien who at any time knowingly has encouraged, induced, assisted, abetted or aided any other alien to enter or to try to enter the United States in violation of law is excludable. A waiver is authorized under the revised INA §212(d)(11) where the alien demonstrates humanitarian, family unity, or public interest grounds. The waiver applies only to permanent residents who temporarily proceeded abroad voluntarily and are otherwise admissible to the United States as returning residents and applicants for admission or adjustment of status as family-based immigrants if the alien has smuggled only an individual who at the time such action was the alien's spouse, parent, son or daughter. [Applicable to applications for waivers filed before, on or after September 30, 1996 but shall not apply to such an application for which a final determination has been made as of that date.]

Document Fraud

Aliens who are subject to a final order for violation of section 274C (which relates to document fraud) are excludable under INA §212(a)(6)(F)(i) [formerly INA §212(a)(6)(F)]. The new INA §212(D)(12) provides for a waiver of INA §212(a)(6)(F)(i) for humanitarian purposes or to assure family unity in the case of lawful permanent residents, who temporarily proceeded abroad voluntarily and are otherwise admissible to the United States as returning residents, and applicants for admission or adjustment of status, if no previous civil money penalty was imposed against the alien under section 274C and the offense was committed solely to assist, aid or support the alien's spouse or child. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this ground.

Student Visa Abusers

The new INA §214(l) bars F-1 student status for aliens seeking to attend public elementary school or a public adult education program. Entry to attend public secondary school is permitted but only if the aggregate period of F-1 status does not exceed one year and the alien reimburses the school for the costs of providing the education. An alien who initially enters to attend private school and then transfers to a public school (subject to the exception previously described) is deemed to have violated F-1 status.

Under the new INA 212(a)(6)(G), an alien who obtains F-1 status and who violates INA §214(l) is excludable under the alien has been outside the United States for a continuous period of 5 years after the date of the violation. [Applicable to aliens who obtain F-1 status 60 days after September 30, 1996 (i.e. November 29, 1996), including aliens who extend their stay after this period.]



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