John Valdez’s Legal Blog

The U.S. Consulate in Ciudad Juarez  (”the Consulate”) has changed its policy in a way that will prevent many young people from coming to the United States.  Indeed, the Consulate, the largest and busiest immigrant visa post in the world, will now apply a permanent bar to U.S. admission (refered to as “the Permanent Bar”) to all minors who:

• Previously accrued unlawful presence in the U.S. in the aggregate of more than one year;
• Who later entered the U.S. without inspection; or
• Attempted to enter the U.S. without inspection.

The term ”unlawful presence” is defined as being present in the U.S. after the expiration of the period of authorized stay or present in the U.S. without being admitted or paroled.  Unlawful presence will begin to accrue if a person unlawfully enters the U.S. without documentation, remains in the U.S. after the expiration of the person’s Form I-94, or remains in the U.S. after the government issues a decision noting the person is out of status.  

In adopting its new policy regarding minors, the Consulate had to deal with some confusing statutes that deal with the Permanent Bar, mentioned above, and the Three and Ten Year Bars.  The Three and Ten Year Bars work as follows:

1. Three Year Bar: If a person is unlawfully present in the United States for more than 180 days but less than 1 year, that person is barred from reentering the U.S. for 3 years; and
2. Ten Year Bar: If a person is unlawfully present in the United States for 1 year or more, that person is barred from reentering the U.S. for 10 years.

 There is an exception to the Three and Ten Year Bars for minors.  The applicable statute provides:  “No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States . . . .”  INA Section 212(a)(9)(B)(iii)(I). 

 Until recently, the Consulate applied this exception for minors not only to the Three and Ten Year Bar statute, but also to the Permanent Bar statute.  Unfortunately, the Permanent Bar statute contains no specific language granting minors an exception to the rule, which has led to confusion over the rule. 

The Consulate’s changed policy is truely unfortunate.  The former INS (now called the United States Citizenship and Immigration Services) had previously issued policy guidance in 1997 stating that the exception for minors did not apply to the Permanent Bar statute, but the Consulate exercised its own authority to apply the exception over the years until recently.

It is really ashame that the Permanent Bar statute will be applied in a manner that severly penalizes children.  Children have little choice but to follow the directions of their parents; thus, it is a very harsh law that imposes a permanent bar to U.S. admission based on actions children cannot avoid taking. 

The immigration attorneys at Smith & Garg advocate for the rights of immigrants.  If you or someone you know needs immigration assistance, please contact us.