As an FYI, with very limited exceptions, a person admitted for lawful permanent residence is not considered “seeking admission." So, unless an LPR falls under one of the exceptions in INA 101(a)(13)(C), they cannot be charged with inadmissibility under INA 212(a). Rather, in order to be placed into removal proceedings, the LPR would have to be charged with deportability under INA 237.

Focus specifically on many of the non-criminal inadmissibility provisions, including:

• § 212(a)(6)(A)(i)  (surreptitious entry)
• § 212(a)(6)(B)  (no show provision)
• § 212(a)(6)(C)(i)  (false claims)
• § 212(a)(6)(F)  (fraud)
• § 212(a)(9)(A)  (previous removal)
• § 212(a)(9)(B)  (unlawful presence)
• § 212(a)(9)(C)  ("permanent bar")

Other: § 212(d)(5) (parole)

Admissibility Hypo
2020 Exam, Question #3 (40 minutes)
(Moonlight)

Chiron is a Cuban citizen.  He entered the U.S. without inspection on April 1, 2021.  He is currently in El Paso, Texas.  Today is August 19, 2021.

• Chiron is seeking an immigration benefit and does not want to leave the U.S. Is he currently admissible?
  
  
• If Chiron crosses back over the border today into Juárez, Mexico and seeks an immigration benefit from abroad to come to the U.S. lawfully, is he admissible?

For both, please give a yes or no answer and then provide a short explanation of your reasoning with relevant INA provisions.

Admissibility Hypo

2018 Exam, Question #1 (30 minutes)

(The Sixth Sense)

Facts: Cole entered the U.S. without inspection on his 15th birthday. He then lived in the U.S. without status for 3 years and 9 months until his arrest by ICE. He was placed in removal proceedings, had a full merits hearing, and was removed about two months after his arrest. That was 7 years ago.

Cole is now back in his native Yugoslavia. He would like to enroll in a PhD program in the US and apply for an F-1 student visa.

• Question: Is Cole admissible? If not, for how long is he inadmissible? Are there available waivers for him?

Admissibility Hypo

(Cheers)

FACTS:

Frasier entered with inspection on a temporary visa. On July 1, 2020, his authorization to reside in the US expired. On December 1, 2020, he filed an application for adjustment of status. On January 1, 2022, the adjustment application is denied in a final decision. On March 15, 2022, Frasier departs the US.

Answer this question using only the INA and not the USCIS Adjudicator’s Field Manual (AFM).

QUESTION(S):

• Is Frasier admissible?
• If so, for how long and can Frasier get a waiver?

Admissibility Hypo

(Frasier)

FACTS:

Frasier entered with inspection on a temporary visa. On July 1, 2020, his authorization to reside in the US expired. On December 1, 2020, he filed an application for adjustment of status. On January 1, 2022, the adjustment application is denied in a final decision. On March 15, 2022, Frasier departs the US.

Answer this question using only the INA and not the USCIS Adjudicator’s Field Manual (AFM).

Addendum from Cheers Hypo:

• In addition to INA 212, consult the USCIS AFM Chapter 40.9.2; specifically, 40.9.2(a)(3)(B) and (b)(3)(A).

QUESTION(S):

• Is Frasier admissible?
• If so, for how long and can Frasier get a waiver?

Inadmissibility Hypo

(Twilight Zone)

FACTS:

• On January 1, 2015, Rod entered the US without inspection.
• On December 1, 2015, Rod was arrested by ICE and put into removal proceedings.
• At his removal hearing on February 1, 2016, Rod was ordered removed. He was removed that day.
• Now, it’s 7 years later, so February 1, 2023. Rod has an employment visa that would let him come to the US.

QUESTION:

• In 2015, what provision under 212 made Rod inadmissible?
• Now, is Rod currently admissible? Do those previous inadmissibility provision(s) affect him now.

Inadmissibility Hypo
(Saturday Night Live aka "SNL" #4)

FACTS:

• Lorne was outside the US and waiting for the priority date on the 4th preference petition filed on his behalf by his brother, Michael. The petition was first filed in 2010. The wait time was approximately 10 years.
• On July 1, 2019, Lorne tried to enter the US not at a port of entry. Michael was sick, and Lorne felt he could not wait any longer. He was caught, put into expedited removal, and removed that same day.
• On January 1, 2020, Lorne’s priority date became current. On his application, he did not list the removal from 2019 and did not file a waiver.

QUESTION:

• Is Lorne admissible?
• Can he receive a waiver? Will he receive a waiver?

Admissibility
Policy Question
2019 Exam, Question #7 (16 minutes)

Review INA § 212(a)(9)(B):

(B) ALIENS UNLAWFULLY PRESENT

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the U.S. for a period of more than 180 days but less than 1 year, voluntarily departed the U.S. (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the U.S. for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the U.S.,

          is inadmissible.

(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the U.S. if the alien is present in the U.S. after the expiration of the period of stay authorized by the Attorney General or is present in the U.S. without being admitted or paroled.

• You are a new Department of Homeland Security (DHS) supervisor (sorry!). Your first assignment is to write a manual for immigration officers in airports and at borders to use in determining the admissibility of noncitizens.  Specifically, you must include in this manual a clearer statement of § 212(a)(9)(B) than the statute provides.  Re-write § 212(a)(9)(B) in a manner that retains the original meaning of the text, but states that meaning in writing that is more easily understood.  Remember: immigration officers using your manual are not lawyers.  Therefore, you should re-write this section of the statute in a way that will be easily understood, and easily applied, by non-lawyers.