Lawful Admission

Admission v. entry

Lawful admission to the United StatesLawful admission to the United States is important and, one would argue, fundamental concept of the U.S. immigration law because it rests on the historical foundation — the exclusive right of a sovereign country to control its borders. That right inevitably includes deciding who is allowed to enter into the country. In larger sense, it is also critical to protecting U.S. national security interest as well as adjudicating benefits under the immigration laws of the United States. In fact, the very determination of eligibility to an immigrant or nonimmigrant benefit is, with very minor exceptions, directly connected to whether the applicant for the benefit was lawfully admitted. According to the Immigrant Policy Center “the concept is so important that the term “admission” — or a variation of it — appears hundreds of times throughout the Immigration and Nationality Act (INA) and the regulations.”

Although admission as a legal concept has always existed, until middle 1990's it had not played such an important role and was used in rather limited context, mostly for purposes of determining legal immigration status or eligibility for immigrant benefits. Instead, it was the question of legal entry that played that role. In the immigration reforms of 1996, the concept of admission replaced the idea of a legal entry, putting it almost entirely out of business and leaving only a scintilla of its former relevance in today's immigration law. Thus, before the reach of admission was dramatically expanded as a result of the broad immigration reform of the 1990's, known as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the division between treatments of aliens hinged upon the concept of entry. This is why discussing this concept briefly is important for purposes of explaining the concept of inadmissibility.

A foreigner was considered to be making an “entry into the United States” in two circumstances. First, when he or she was physically present at a port of entry in the USA or its territorial boundaries and inspected by a border control officer. Second, when the individual took actual steps to intentionally evade such inspection at the nearest inspection point.

At the same time, not every person who managed to barge into the U.S. territory was considered having made an entry. To be making an entry, the individual had to be free from retrain. * The last issue, however, has been of diminished importance since the expansion of the concept of admission in 1996. Though the lawfulness of an alien's presence in the USA since then hinges heavily on the concept of admission, to be proper, admission still requires a “lawful entry”, thus keeping entry doctrine well and very much alive.

The change from entry to admission did not come in vacuum. Instead, it was born in convulsions and deep pain associated with the often ambiguous and unintended consequences produced as a direct result of the entry doctrine's failure to live up to the realities of the massive invasion of this Country's Southern border by individuals making an entry without inspection (the EWIs).

Admission clarified some previously ambiguous situations. For instance, a person who entered without inspection (EWI) is now subject to inadmissibility despite the fact that they have made an “entry” into the United States under the old system. ** Another example would be an alien who escaped from detention during the time when he or she was in the United States waiting for an exclusion hearing to take place. Such individual would not be considered now of having made an entry.*** An alien who was placed in custody of an airline, yet did not show up to be interviewed by immigration officers to be determined whether he or she was admissible, would also not be viewed as having made an entry under the new admission standards.****

What is an admission?

INA §101(a)(13)(A) defines admission as the “lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Why is this definition so different from the previous system based on the concept of entry? Because at some point in time the Congress has made a determination that, people who were allowed into the country should have been treated differently from those who outright violated our laws, and barged in through the border thus evading inspection. It was this fundamental issue of control over our sovereignty that determined this change brought about by IIRIRA. Under the current law, individuals who entered without inspection (EWI) are deemed inadmissible as if they had been detained at the border while under the old system, they would have been considered having made an entry.

This rule is clearly defined in both statute — INA §212(a)(6)(A)(i) and regulation — 8 C.F.R. §235.1(f)(2), which declare that a noncitizen “present in the U.S. who has not been admitted or paroled (another form of temporary authorization to enter the country), or an alien who seeks entry at other than an open, designated port of entry” shall be considered an applicant for admission and subjected to the INA §212(a) where most grounds of inadmissibility are defined in the current version of the INA.

To address the issue of admission, after all a person cannot be inadmissible if she or he never asked to be admitted, the Congress included in the revised Immigration and Nationality Act (INA) section §235(a)(1) which resolves this issue. Pursuant to the section an ” alien present in the United States who has not been admitted, or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this Act [INA] an applicant for admission.”

Thus, under the current INA, where doctrine of admission is now the law of the land, an individual who entered without inspection is an applicant for admission at all time during that person's presence in the USA, who is at the same time outright inadmissible by the operation of law.

Applicants for admission

As explained, the concept of admission did exist prior to IIRIRA and coincided with the doctrine of entry, which dominated the field. Back then, this doctrine had rather limited applicability and mostly meant that an alien who was not an applicant for admission could not have been placed in exclusion proceedings. This limited application resulted in a very incongruent application of the law and contributed to a disparate treatment of deportable and excludible aliens that ensued. For example, individuals ordered deported by an immigration judge could not seek adjustment of status in the United States unless they complied with the deportation order and stayed outside of the United States for five years or had the order reopened.

At the same time, individuals ordered excluded, would proceed with the adjustment of status despite having been ordered excluded, often by the same judge. Individuals found excludable were also owed an additional courtesy under the old law of being given an opportunity to depart voluntarily before exclusion proceedings would be initiated. Similarly, a person involuntarily removed from the U.S. (other than through deportation) could not be considered an applicant for admission upon return.

Under the current law however, INA §235(a)(i) makes any noncitizen an applicant for admission when “present in the United States while not having been admitted or paroled or who arrives in the United States “whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters”

Since the enactment of the IIRIRA, Department of Homeland Security's position has been that any noncitizen brought to the U.S. is an applicant for admission regardless of intent. DHS views Matter of Badalamenti as outdated by the change from entry to admission and as such no longer good law in light of the INA §235(a)(i).

Physical Presence is All that is Needed

Parole is not admission

Like in any action, this change produced an unintended consequence of now making EWI individuals eligible for parole under §212(d)(5)(A), if this is what U.S. Government would like to grant them, even if they do not meet the “arriving alien” definition under 8 C.F.R. §1.2.****

Inadmissibility

Inadmissibility is a legal concept that is fundamental to the current U.S. immigration law because it directly affects adjudication of immigration benefits. It stems directly from the concept of admission. Inadmissible means not allowed by the law to be admitted or refused admission at the discretion of US Government. §212(a) of the Immigration and Nationality Act (The INA) outlines general classes of aliens considered inadmissible by Congress. It is, in essence, the primary source of the inadmissibility grounds that is reasons for which an individual will be deemed inadmissible. All noncitizens “are ineligible to receive visas and ineligible to be admitted to the United States” if they are found inadmissible.

Waivers of inadmissibility

The Congress has recognized that some situations might warrant giving people a second chance, especially when other people — US Citizens and Permanent Residents are directly affected. Hence, INA Sec. 212 also provides for limited corresponding inadmissibility waivers in some, but not all, inadmissibility circumstances. Waivers are permissions to be admitted despite inadmissibility, granted to some individuals in recognized situations.

If granted, such permission would give the alien a second chance and allow him or her to enter the United States either as a nonimmigrant or for permanent residence, despite the inadmissibility but upon the advance authorization by the U.S. Citizenship and Immigration Services. These waivers exist mostly due to public policy considerations. They have to do with the attempt of the Congress to make the law sufficiently pliable in order to take into account some extreme hardship situations. In creating the waivers, the Congress' reason was that holding such individual continuously responsible for the behavior that had caused the inadmissibility in the first place, would effectively impose extreme hardship on people who are that individual's immediate relatives and members of the nuclear family and either U.S. citizens or permanent residents.

Grounds of inadmissibility

There are several inadmissibility types. They can be loosely divided into several larger groups as reflected in the INA §212(a) — health related; criminal conduct related; security related; dishonesty related; illegal entry related and procedural deficiency related. Because of the harsh consequences, findings of inadmissibility carry and limited availability of waivers which are granted rather reluctantly. Avoiding engaging in activities, which may potentially cause inadmissibility and understanding these consequences have become paramount for everyone who thinks about and plans on immigrating to or visiting the United States of America.