Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Unlawful Presence for Minors

Question: I am 17 years old and do not know if I will be subject to being unlawfully present. Can you clarify?

Answer: There has been a significant change in the interpretation of unlawful presence as it relates to minors by the U.S. Consulate in Ciudad Juarez, Mexico (“CDJ”) and perhaps other U.S. consulates, with devastating results. Accordingly, the Visa Office has directed the consulate at CDJ to cease applying the “minor exception” of INA §212(a)(9)(B)(iii)(1) to unlawful presence findings under INA §212(a)(9)(C)2, resulting in denial of immigrant visas to children under the age of 18, as well as denial of immigrant visas to adults who had unlawful presence and a re-entry as a minor. This action may need Federal Court action in order to best determine how to proceed as it was not previously applied in this manner and it subject to interpretation.

Question: What is the background of this provision?

Answer: INA §212(a)(9)(B)(i)3 imposes three- and ten-year bars upon foreign nationals who have accrued specific periods of time in the U.S. INA §212(a)(9)(B)(iii) provides a series of statutory exceptions to the period of time which can be counted toward an alien’s unlawful presence. The so-called “minor exception” is found there, and exempts from unlawful presence periods of time when the alien is under 18 years of age.In practice at CDJ, the “minor exception” has been applied to the INA §212(a)(9)(C) permanent bar for aliens who have been unlawfully present for an aggregate period of one year, or who have been ordered removed under INA §235(b)(1) and INA §240, or any other provision, who then returned to the U.S. without inspection. Previously, if an alien minor was in the U.S. unlawfully for one year, was then taken home, for example, to Mexico to see his grandparents, and was brought back into the U.S. without inspection, the permanent bar of INA §212(a)(9)(C) has not been applied. This makes sense because INA §212(a)(9)(B) defines unlawful presence for “this paragraph,” and states the exceptions.Recently CDJ has been taking the position that the unlawful presence exception for minors does not apply to the permanent bar of INA §212(a)(9)(C), because the statutory exception is only listed under INA §212(a)(9)(B). As noted above, INA §212(a)(9)(C) does not include a definition of unlawful presence, but CDJ continues to “import’ that definition from §212(a)(9)(B) without applying the exceptions found therein. This by itself could be a violation of due process considering there is no notice that it would be applied in this manner.

Until a resolution is reached, minors, or those who had been unlawfully present in the U.S. as a minor, and thus, who fall under the newly-interpreted INA §212(a)(9)(C) bars, should not consular process, at least through CDJ, and perhaps at all. It is not known at this time if other U.S. consulates are applying this interpretation of the law, and if the same issue is present with theother exceptions to the unlawful presence bars found at INA §212(a)(9)(B)(iii).

Therefore, what we have is an agencies interpretation of a particular law without any guidance, caselaw or statutory provisions mandating the proper procedure. It simply does not make sense that the unlawful presence does not apply to a minor EXCEPT if it supposedly falls under the above scenerio. Congress enacted this provision and specifically excluded minors. Why would they exclude minors under this provision only to have CDJ apply it completely against minors by referring to another section? This will have to go to Court to protect those who need its protection the most – the minors.

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