Waiver for Inadmissibility


Historically, the United States is a country of immigrants. Established by immigrants and developed by immigrants the USA has enjoyed both substantial benefits as well as serious setbacks associated with immigration into the country. This dichotomy eventually led to the need to determine who should be allowed to enter and stay in the USA. Congress enacted a number of laws to regulate the immigration process. The President promulgated regulations to enforce the laws enacted by Congress. The laws and regulations are collectively referred to in today's jurisprudence as U.S. Immigration Law. This process also led to the introduction of the concepts of deportation and exclusion. Hence, the relevant question has become — who is deportable and who is excludable? Is the foreigner who presents him or herself at the port of entry — airport, seaport or border crossing — and asks to be allowed to enter the United States, deportable? If yes, how is it so? After all, the person is not yet physically in the United States to be deported? How about an individual who has crossed the border illegally and is now present in the USA but was never inspected or allowed to enter? U.S. Immigration Law has struggled with these issues for years eventually settling on the legal concept of entry. For purposes of determining whether a person would be allowed into or remain in the USA, the answer hinged on the issue of legal entry. As a result, an alien deemed to have made a legal entry into the USA but overstayed his or her welcome or committed act(s), which effectively revoked such welcome, was considered deportable and all others deemed not to have made such entry were deemed excludible.

However, when used this way, the concept of entry has created a number of insurmountable legal problems and dilemmas, which Congress eventually sought to avoid. As a result, the fundamental role of this concept of entry in today's Immigration Law was substantially diminished, though not completely eradicated, by the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This law amended the Immigration and Nationality Act (INA) — the fundamental statute, which lays at the foundation of the U.S. Immigration Law — to replace “entry” with the new legal concept of “admission”, for purposes of determining the right of a noncitizen to remain or enter the USA. The adoption of the concept of admission led to the replacement of the concepts of deportability and excludability with removability and inadmissibility. As amended, the INA defines admission as lawful entry of the alien into the United States after inspection and authorization by an immigration officer to make such entry (INA§101(a)(13)(A)).

Thus, admission is a legal term defined by the INA. It is also directly connected to the concept of an entry since an entry into the USA territory without such authorization and inspection is considered illegal and unlawful and such person is deemed inadmissible. In other words, an individual who has entered the United States without going through the process of inspection and authorization is considered inadmissible even if he or she was never caught in the process of doing so. At the same time, inadmissibility is not limited only to people who enter the United States without inspection. It is a much broader concept that applies to a large number of situations and variety of reasons. Hence, a person who crosses a U.S. border without having been inspected and allowed in by an authorized U.S immigration official is only one example of an inadmissible individual. The law refers to these noncitizens as individuals who entered without inspection (EWI), and views them as though they had been apprehended while illegally crossing the border. (INA §212(a)(6)(A)(i);8 CFR §235.1(f)(2)) The law treats these individuals as if they made an application for admission that is if they had presented themselves at an establish border crossing area. Though a bit legalistic, such approach seems to be fair because doing otherwise would mean giving an undeserved advantage to violators of our borders over people who orderly seek admission into the USA. Such outcome, if allowed, would have inevitably served as an incentive to a large number of our border violators. At the same time, and taking into account family unity and other humanitarian considerations, the law, in deserving circumstances, also provides for some limited remedies including parole,(INA §212(d)(5)(A)), as well as various degrees of refugee protection and inadmissibility waivers.


Inadmissibility is also a legal concept introduced by IIRIRA. Inadmissibility emanates from the concept of admission and establishes certain conditions, the presence of which vis-a-vis a particular individual, with certain exceptions, mandates the Government of the United States to deny a foreigner into the U.S. territory or permission to adjust his or her status to that of a Lawful Permanent Resident in the USA. Inadmissibility may be caused by a number of reasons. Historically, many individuals who have been found by U.S. Immigration Law to be undesirable on the American soil — the true meaning behind the inadmissibility concept — including: certain individuals who had committed particular crimes, often regardless of whether they have been convicted or found guilty; people convicted of specific crimes; individuals who engaged in activities, which U.S. law and policy considers going against public interest and safety; Nazi collaborators; people with some contagious diseases or psychological disorders; individuals who have provided material support to terrorism; and many others. In fact, it is to carry out this policy that American Jurisprudence has developed certain legal concepts, which over the years were put into the law. Currently, only people who are considered admissible, or whose inadmissibility grounds have been waived, are allowed into the United States or permitted to adjust status to that of a Lawful Permanent Resident of in the USA. If inadmissibility arises after the alien is already physically present in the USA, it triggers removability of such individual from the USA on the grounds that he or she is inadmissible (INA§237(a)(1)(A).

Application for Admission

To summarize as it is somewhat counterintuitive, to be an applicant for admission, an individual needs not affirmatively seek entry into the USA. Since IIRIRA, U.S. immigration law currently considers every individual who is either present at the border crossing or within the US territory, regardless of the manner of entry, including individuals “brought to the United States after having been interdicted” in U.S. territorial waters or even international waters, to be seeking admission (INA §235(a)(1),8 C.F.R. §235.1(f)(3);8 C.F.R. 1.1(q)). For instance, individuals who have entered the U.S. territory unlawfully or were interdicted in high seas, and then brought to the USA contrary to their will, are still deemed by law to be applicants for admission.

By contrast, entering the 12 miles sea zone, which is under US law deemed US territorial waters, without being subsequently brought into the USA, does not generally makes the intruder an applicant for admission, while crossing onto the land does.

Freedom from Restraint

Is there any importance still left to the concept of entry? First, since the new concept of admission still relies on the alien's seeking legal entry, the concept of entry remains. It legal significance, however, has diminished since the introduction of the new statutory scheme that relies heavily on admission. For years the definition of entry hinged on the idea of freedom from restraint. In other words, physical presence on U.S. soil was insufficient to make an entry unless such individual was deemed to be free of restraint. Now, when admission reigns, freedom from restraint or not, an alien will in most instances be deemed to have applied for admission. However, s/he will not be deemed such in all instances. See Matter of Z, 20 I. & N. Dec 707 (BIA 1993). See also Matter of Patel, 20 I. & N. Dec 368 370 (BIA 1991); Matter of Sanchez, 17 I. & N. Dec 218 (BIA 1980); Matter of Pierre, 14 I. & N. Dec 467 (BIA 1973); Mariscal-Sandoval Ashcroft 370 F.3d 851 854-55 (9th Cir. 2004) (paroled and released was not free from restraint because he was in exclusion proceedings the entire time and therefore did not enter the U.S); Sidhu Ashcroft, 368 F.3d 1160 (9th Cir 2004); Yang v. Maugans, 68 F.3d 1540 (3dCir 1995); Zhang v. Slattery, 55 F.3d 732, 756 (2d Cir 1995). At the same time, individuals who are considered EWI, and therefore are inadmissible, are still considered to have made an entry. See Heng Meng Lin v. Ashcroft 247 F.Supp.2d 679 683-85 (E.D Pa 2003). Hence, these individuals can enjoy constitutional protection including prohibition against prolonged detention. See Zadvydas v. David, 533 U.S. 678 (2001).

This is a positive step in the right direction from the pre-IIRIRA situation in some respects and negative in others. Before IIRIRA, an individual who ran away from the INA detention while in exclusion proceeding awaiting a hearing on the issue of whether he or she was excludable and as such not allowable into the USA, was deemed to not have made an entry and thus could not enjoy the Constitutional protection afforded to those who did (Matter of Lin, 18 I. & N. Dec. 219 (BIA 1982)). An alien in transit without visa (TWOV) was also deemed to not have entered the U.S. (United States v. Kavazanjian, 623 F.2d 730 (1st Cir 1980); United States v. Esperdy, 210 F.Supp 786 (S.D.N.Y 1962)). An alien who was placed in carrier custody and failed to appear for an INS interview was likewise deemed to not have made an entry (Vitale v. INS, 463 F.2d 579 (7th Cir 1972)). All of the above-referenced individuals would be deemed applicants for admission under the current statutory and regulatory scheme.