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Know Before You Go: Issues for Non U.S. Citizens Leaving the U.S.

Navigating the stormy waters of the Immigration and Nationality Act can be a hazardous proposition for even the most experience immigration lawyers. But for immigrants not familiar with the American immigration system, it can be downright treacherous. Take for example the distinction between removability and inadmissibility.

Admissibility relates to the admission of non U.S. citizens into the United States at ports of entry. In other words, when an immigrant is at the door and knocking to come in. Section 212 of the Immigration and Nationality Act tells Customs and Border Protection Agents when and when not to let these immigrants into the United States.

When a non U.S. citizen is already inside the United States, removability relates to when the government can deport that person. Section 237 of the Immigration and Nationality Act tells government officials when a person can be removed from the United States.

There are many circumstances when a person cannot be removed (or deported) from the United States, however, they will not be let back in if they leave. That is why it is extremely risking for a non U.S. citizen to leave the United States. Unlawful presence inside the United States, criminal convictions, and extended absences outside the United States are all examples of potential reasons why a person would not be allowed to reenter the U.S., even though they would not have been deported had they never left.
This list is by no means exhaustive and the issues are very complicated and require a factually specific analysis.

The most common issues of admissibility relate to unlawful presence and criminal convictions. As far a unlawful presence, INA Section 212(a)(9)(B) provides that once a person leaves United States after being unlawfully present in the U.S. for more than 180 days, but less than a year, they have a three year bar from reentering. If they were in the United States unlawfully for more than a year, there is a ten year bar from reentering. The bar is triggered upon the person leaving. Therefore, a person who is here unlawfully for more than ten years and has a United States citizen immediate relative who would incur extreme hardship if the immigrant were deported may be eligible for cancellation of removal. However, if that same person leaves the United States, they incur and ten year bar to reenter and would have to seek a hardship waiver at an embassy, rather than seek cancellation of removal before an Immigration Judge with the right to appeal.

Criminal convictions provide the one of the most common and dangerous issues for non U.S. citizens. Some criminal convictions will make a person removable (deportable), but will not make that same person inadmissible. More commonly, some criminal convictions will make a person inadmissible, but not deportable. This latter situation often lures non U.S. citizens into a false sense of security. For example, a lawful permanent resident who is arrested and pleads guilty to petit theft, which is a crime involving moral turpitude, would not be deportable if the crime occurred five years after the date of admission (See INA Section 237(a)(2)(A)(i)), however that same person would be inadmissible, regardless of when the crime occurred (See INA Section 212(A)(i)(I)). As with everything in life, there may be exceptions. For example, there is a petit offense exception for inadmissibility issues if the person is eligible. The concern for non U.S. citizens is that while inside the U.S. borders, that person would not be deportable, once the person leaves, they may not be granted admission at a port of entry. Or they may be paroled in and placed in removal proceedings to appear before an Immigration Judge. This can be a scary, costly and time consuming process with no guarantee of a certain outcome.

If you have a criminal conviction or unlawful presence, consult with an immigration attorney prior to leaving the country to ensure that you are fully advised of the potential immigration consequences of departing the United States.