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Aliens Seeking Admission to the United States

21
Mar
2011

by in Immigration

Aliens who are “inadmissible” into the United States are afforded far less protection than those who are already here but seek deportation. While it may seem strange, anyone who enters the United States without having been inspected (EWI), or for whom it has been determined not to have lawfully entered the country is now treated under U.S. Immigration Law as someone seeking admission.

Section 235(a)(1) of the INA holds that an alien who is in the United States after not having been admitted shall be deemed for purposes of this Act an applicant for admission.

An “arriving alien” is an alien seeking admission to or to travel through the United States, at a port of entry, or an alien who is seized in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport.

Someone stays an “arriving alien” remains even if paroled pursuant to Section 212(d)(5) of the Act. 8 C.F.R. § 1001.1(q). Also, an alien who leaves the U.S. and seeks refugee status in Canada, but later returns to the U.S. after the application was denied in Canada, is also considered to be seeking admission to the U.S. Therefore, such an alien is still deemed an arriving alien. Matter of R-D-, 24 I&N Dec. 221 (BIA 2007).

Section 101(a)(13)(A) of the INA as amended by Section 301 of the IIRIRA, provides that the terms “admission” and “admitted” mean the lawful entry of an alien into the U.S. after inspection and authorization by an immigration officer.

The Board of Immigration Appeals has held that the interrogation of an alien by immigration officers during an change of status interview and the approval of that person’s adjustment of status was an inspection and admission under Section 101(a)(13)(A) of the Act.

However, The BIA later went on to find that an alien who initially entered the U.S. without inspection (EWI) but whose subsequent conviction for an aggravated felony was after the adjustment of status to obtain a green card under Section 245A of the Act is deportable under Section 237(a)(2)(A)(iii) of

the INA as an alien who was convicted of an aggravated felony “after admission.” Matter of Rosas, 22 I&N Dec. 616 (BIA 1999). Crewman are also deemed to not have being admitted.

Green Card Holders seeking readmission. Section 101(a)(13)(C) of the Act holds that an alien that is a lawful permanent resident shall not be considered as seeking admission into the U.S. unless he or she alien:

  1. has abandoned or relinquished LPR status [INA § 101(a)(13)(C)(i)];
  2. has been absent from the U.S. for a continuous period in excess of 180 days [INA § 101(a)(13)(C)(ii)];15
  3. has engaged in illegal activity after departing the U.S. [INA §101(a)(13)(C)(iii)];
  4. has departed from the U.S. while under legal process seeking removal of the alien from the U.S., including removal proceedings and extradition proceedings [INA § 101(a)(13)(C)(iv)];
  5. has committed an offense identified in Section 212(a)(2) of the Act, unless since such offense the alien has been granted relief under Section 212(h) or 240A(a) [INA § 101(a)(13)(C)(v)];
  6. is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the U.S. after inspection and authorization by an immigration officer [INA § 101(a)(13)(C)(vi)].

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