DHS erases barrier to legal status for some illegal immigrants

The fact that someone made it back into the U.S. after being ousted as an illegal immigrant is “irrelevant” to their ability to apply for a new legal status, Homeland Security’s citizenship agency says in a new policy.

In the past, U.S. Citizenship and Immigration Services would have denied the application under a law that required onetime illegal immigrants to wait outside the country for up to 10 years before they could apply to come back legally.

Experts said the new policy now says the law doesn’t require someone to wait elsewhere, as long as they don’t pop up on Homeland Security’s radar during the waiting period.

“This is like the ‘don’t ask, don’t tell.’ We won’t ask you where you’ve been during your admissible period, and you don’t tell us. It’s sheer craziness,” said Emilio Gonzalez, who ran USCIS during the Bush administration.

At issue is what’s known as the three-year/10-year bar to admissibility, which is supposed to be a deterrent to trying to live in the country illegally.

Under the three-year/10-year bar, someone who was here without legal status for at least six months but less than a year must depart and wait three years before applying to come back legally. Someone here without authorization for longer than a year must leave and wait 10 years before applying and being deemed “admissible.”

Previously, USCIS had assumed the migrants were supposed to wait outside the U.S. during the bar, Mr. Gonzalez said. Someone who returned before their time was up would be denied.

But the new policy says that’s no longer the case.

The policy, dated June 24, says the “noncitizen’s location during the statutory 3-year or 10-year period and the noncitizen’s manner of return to the United States during the statutory 3-year or 10-year period are irrelevant for purposes of determining inadmissibility.”

The policy appears to apply retroactively, saying would-be migrants who have been previously denied based on their location at the time of their application can file a motion to reopen their case.

A footnote says the “manner by which the noncitizen returns … may result in the accrual of a new period of unlawful presence.”

And in a statement to The Washington Times, USCIS said someone who left and then snuck back in illegally could still be blocked by other sections of the law.

“That individual is subject to an additional and more onerous ground of inadmissibility,” the agency said.

That didn’t mollify analysts who said the overall thrust of the new memo is to pursue leniency.

“This is basically an invitation for any deported alien to pay the cartels to smuggle them back into the U.S. while they let the clock run out,” said Rob Law, former head of the USCIS policy office in the Trump administration and now director of the America First Policy Institute’s Center for Homeland Security and Immigration.

Rosemary Jenks, vice president at NumbersUSA, which advocates for stricter immigration controls, said if people are able to sneak back in and live without losing their place in line, there’s no reason not to attempt it.

She also pointed out that someone who has been deported and sneaks back in has committed a felony, making them an odd choice for government leniency.

“The entire point of the 3-year/10-year bar was to deter people from coming illegally, knowing they would not be able to get in legally for an extended period of time,” Ms. Jenks said.

The bar is applied relatively infrequently, and it’s not clear how many people would actually be affected by the new policy.

USCIS said one reason for the new policy is to bring unity to its own operations. The agency said it was aware of instances in which different offices reached different conclusions about how to apply the rules concerning an applicant’s location. The agency did not provide more details.

USCIS also said the change is in response to two federal district court rulings on the issue, though the agency acknowledged neither decision was binding.

One case involved a Japanese woman who entered on a short-term visitor’s visa in 1996 and stayed until 2003, thus triggering the 10-year bar. She returned in 2005 and once again stayed, eventually applying for status here thanks to a marriage to a U.S. citizen.

The judge ruled that the law says the 10-year bar runs from the time she departed, regardless of her later return and subsequent overstay.

The other case involved a Brazilian man who came on a tourist visa in 1993, overstayed and was ordered deported in 1994, but didn’t leave until 2000. He managed to get another tourist visa in 2002 by hiding his previous illegal presence, and has remained in the U.S. since.

He applied for permanent status in 2016, but USCIS denied his case, saying he was ineligible because of the 10-year bar, which should have been in place to prevent his second arrival.

The judge ruled that the illegal reentry doesn’t start the 10-year clock.

“I hold that an alien is inadmissible only during the 10-year period following his or her departure,” concluded Judge Kevin McNulty, an Obama appointee to the court in New Jersey — though he acknowledged it might very well amount to “bad policy.”

Ms. Jenks said the new USCIS policy may run afoul of the Administrative Procedure Act, which requires major policy changes to go through a public comment period before being implemented. The APA has repeatedly snagged the Biden administration’s immigration policy changes, just as it did for some of President Donald Trump’s moves.

USCIS described the new rule as “policy guidance,” saying there was no existing language in the policy manual dealing with the matter.