After Removal: Possibilities for Reentry to the U.S.

A noncitizen who has been deported (removed) from the United States to another country is not supposed to attempt to reenter for 5, 10, or 20 years, or even permanently. (The exact length of time depends on factors like the reason for removal and whether the person was convicted of a crime.) In immigration-law lingo, you are "inadmissible" for this set length of time after being removed. It doesn't matter whether the order of removal was issued in immigration court or by a government officer at the U.S. airport or border.

What If I Simply Reenter the U.S. Illegally?

If you come back to the United States without permission after a removal order, the order could be "reinstated." That basically means you could be sent back as soon as you are caught. The process allows an immigration officer to return you to the country to which you were previously deported without letting you see an immigration judge first.

Additionally, you could be charged with the federal crime of illegal reentry. (See 8 U.S. Code § 1326.) But as discussed below, you can, if you have separate grounds upon which to request U.S. entry, apply for permission to return to the United States.

After an Illegal Reentry, Will My Previous Removal Order Be Reinstated If I'm Afraid to Return Home?

If you are caught by immigration authorities after reentering the United States, your removal order will be reinstated unless ICE gives you a stay of removal or you pass a reasonable fear interview with an asylum officer (which means showing that you reasonably fear being returned to your home country, because you might face persecution there).

A stay of removal allows you to stay in the United States for a limited amount of time. Passing a reasonable fear interview allows you to appear before an immigration judge and request withholding of removal, which is similar to asylum.

What Happens If I'm Criminally Charged With Illegal Reentry?

If charged with the federal crime of illegal reentry, you can elect to have either a federal public defender or a private criminal attorney represent you. You are entitled to a criminal trial, where you can plead guilty or not guilty.

If convicted, you could be penalized with serving up to two years in federal jail, paying a fine, or both. At the end of serving your time (if any), you could be removed through the previously mentioned reinstatement of removal by immigration authorities unless ICE grants you a stay of removal or you pass a reasonable fear interview with an asylum officer.

Is There Any Way to Legally Reenter the U.S. Before Waiting the Required Number of Years?

If you have a new or separate basis upon which to request a visa or green card—for example, your brother is a U.S. citizen who petitioned for you (on Form I-130) and your priority date has finally become current, or you've received a job offer as a tech worker and wish to apply for an H-1B nonimmigrant visa—you may apply for special permission to go forward with that application.

First, you would need to submit Form I-212, "Permission to Reapply For Admission Into the United States After Deportation or Removal." This form, which is commonly referred to as a waiver request, allows you to ask the immigration authorities to overlook the inadmissibility based on your prior removal and give you a second chance at obtaining some temporary or permanent status in the United States.

On What Basis Could I Be Granted an I-212 Waiver?

USCIS considers each I-212 request on its own merits, looking at your individual situation. You do not have to meet a specific standard or have a qualifying relative in the United States. Before approving your I-212, the U.S. government official handling your case will examine factors such as:

• the reason you were deported in the first place
• how recently you were removed from the U.S.
• the length of time you lived in the U.S. before being removed
• your moral character (in particular, for which crimes, if any, you were convicted)
• your respect for law and order
• evidence that you have shown remorse and been rehabilitated (if you committed a crime)
• your family obligations in the United States
• any other reasons that the government can refuse to admit you into the U.S.
• any hardship to yourself or others were the permission to apply for reentry denied, and
• the need for any services you offer to the United States (for example, if you'll be applying for a work visa).

When you file an I-212, you (or more likely your lawyer, since this task could use professional help) will need to submit a statement and documentation that address any of these factors that are relevant to the reason you were deported or your current life.

For example, the lawyer might help craft a statement describing how you were a law-abiding member of a community in the U.S. for several years before getting making a big mistake and getting deported, how you volunteered in your place of worship, and how your U.S. citizen children have been going through emotional trauma since your deportation. Such a statement would ideally be accompanied by a letter from a church leader confirming the volunteer work and a letter from a psychologist treating the children, among other things.

The more factors you can show in your favor, backed up by convincing documents, the more likely it is that the I-212 application will be approved.

Who Is Eligible to Submit a Form I-212 Request?

Only certain categories of people can apply for the I-212, namely those who:

• were previously removed from the U.S. or ordered removed but voluntarily left the country, or
• have entered the United States unlawfully after a prior removal order or deportation or were present in the U.S. for at least one year without authorization by immigration authorities.

An example of someone entitled to file an I-212 would be a green card holder who received permanent residence through a U.S. citizen spouse and was deported due to having committed a crime. After being deported, the person can submit Form I-212 in connection with an application for a B-2 visitor visa.

Is an I-212 Waiver All I'll Need?

Unfortunately, Form I-212 might not be the only form you need to clear the bars blocking you from applying to return to the United States. If the reason you were deported makes you separately inadmissible—beyond the inadmissibility created by the removal order itself—you will have to also apply for either an I-601 or I-192 waiver based on a separate set of eligibility standards. Whether you file the I-601 or I-192 will depend on whether you are applying for an immigrant visa to live permanently in the United States (using waiver form I-601) or a nonimmigrant visa to remain temporarily in the United States (using waiver form I-192).

The I-212 application should be made before you enter the United States. If the government says yes to your request and also approves your visa or waiver application, you can enter the U.S. legally and need not worry about having your removal order reinstated, or worse, being put in federal jail and/or fined.

Should I Hire an Attorney to Help Me?

Because the process for determining whether you are eligible to file an I-212 form and ultimately to return to the United States is a complicated one, and the application requires submitting extensive paperwork and making persuasive arguments to skeptical officials of the U.S. government, it could help your interests a great deal to get professional help from an experienced immigration attorney.