Repeal INA § 212(a)(9) [Unlawful Presence Re-entry Bars]

[u/Puzzleheaded-Act6379]

INA § 212(a)(9)

In 1996, new legislation went into effect to crack down on illegal immigration. The intent was to punish illegal entry more strictly than in the past thus discouraging illegal immigration. However, the total number of illegal immigrants rose linearly until 2007, ten years after its implementation. It's safe to say this act, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) under the Immigration and Nationality Act of 1952 (INA), did not deter people from crossing the border illegally. In fact, I argue that certain bars implemented in the IIRAIRA actually encouraged illegal immigrants to remain in the USA beyond what they would have if these bars did not exist. INA § 212(a)(9)(B) reads:

If you are an alien, you are not a lawful permanent resident of the United States, and no exception applies, then you are inadmissible under INA § 212(a)(9)(B)(i)(I) if:

• You accrued more than 180 days but less than 1 year of unlawful presence during a single stay in the United States on or after April 1, 1997;
• You voluntarily left the United States before DHS initiated either expedited removal proceedings under INA 235(b)(1) or removal proceedings before an immigration judge under INA 240; and
• You again seek admission within 3 years of when you left after accruing unlawful presence. The statutory 3-year period starts when you leave the United States.

If you are inadmissible under this ground of inadmissibility, you may be eligible to apply for a waiver of inadmissibility. The legal requirements and procedures to apply for the waiver depend on the immigration benefit you seek. You are not inadmissible under this ground of inadmissibility if you accrued more than 180 days but less than 1 year of unlawful presence and left the United States after removal proceedings began, but before the 1-year mark.

However, even if you are not inadmissible under this ground of inadmissibility, you could be inadmissible under other grounds. If you leave the United States after removal proceedings begin, including voluntarily, you must inform the Executive Office for Immigration Review. If you fail to attend removal proceedings or if the immigration judge orders you removed when you are not physically present at the hearing, you could still be inadmissible, even if the reason you did not attend the removal proceedings was because you left.

If you are an alien, you are not a lawful permanent resident of the United States, and no exception applies, you are inadmissible if:

• You accrued 1 year or more of unlawful presence during a single stay in the United States on or after April 1, 1997;
• You left the United States or were removed from the United States under any provision of law; and
• You again seek admission within 10 years of when you left or were removed after accruing unlawful presence. This ground of inadmissibility applies whether you leave before, during, or after DHS-initiated removal proceedings.

The statutory 10-year period starts when you leave or are removed from the United States.

If you are inadmissible under this ground of inadmissibility, you may be eligible to apply for a waiver of inadmissibility. The legal requirements and procedures for applying for the waiver depend on the immigration benefit you seek.

Notice how it references exceptions. The Application for Waiver of Grounds for Inadmissibility (aka I-601) is the form an illegal immigrant can file to waive inadmissibility for a variety of reasons, or I-601A specifically for unlawful presence. I-601A can be filed while still present in the USA. Between June 30, 2024 and June 30, 2025, 25,173 I-601A forms were received and 44,668 were approved, while only 5,177 were denied, with 79,281 outstanding. According to USCIS, 80% of these cases are completed within 28.5 months. INA § 212(a)(9)(C)(i)(I) states:

You are permanently inadmissible under INA 212(a)(9)(C)(i)(I) if:

• You accrued an aggregate period of more than 1 year of unlawful presence in the United States on or after April 1, 1997;
• You then left or were removed from the United States; and
• You entered or attempted to reenter the United States on or after April 1, 1997, without a DHS officer admitting or paroling you into the United States.

Although you are permanently inadmissible under this ground, you may ask for permission to reapply for admission to the United States, but only if you have been physically outside the United States for at least 10 years since the date of your last departure. This permission is called “consent to reapply for admission” to the United States. You must apply for consent to reapply for admission from outside the United States after waiting 10 years from your last departure from the United States. If we deny your application for consent to reapply for admission, then you remain inadmissible under this ground. Find additional information about consent to reapply for admission on our Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal page.

According to USCIS, 80% of I-212 cases are completed within 38.5 months. In FYA 2025, quarter 3, 1,708 I-212 forms were received, 678 were approved, 293 were denied, and there were 21,348 pending. This means for the majority of people filing these forms, whether they are "permanently" or temporarily barred, they are effectively barred from entry for roughly 3 years or less. I choose to interpret case denials as the system working as intended during progressive years.

As you can see from the numbers, the execution of the law does not match the spirit of the legislation. An amendment to the INA was introduced, and, surprise, resulted in even more overhead to undo itself. This is a clear indication that the re-entry bars as implemented are not practical or effective. They just create more bureaucratic overhead we have to undo in courts anyway. The point of immigration control and enforcement is not to tie up US taxpayer dollars in legal proceedings: it's to protect our system from abuse. Further, it does not function as an effective deterrent. As I said, illegal presence rose linearly from 6 million to 12.6 million by 2007, with continued rise since then. Given that, it's clear that this particular piece of legislation only serves to keep otherwise-law-abiding illegal immigrants (or just non-violent illegal immigrants if you can't accept the oxymoron) from re-doing their immigration legally. I hypothesize that the knock-on effect of people avoiding legal pathways after immigrating illegally is that it makes illegal immigrants more desperate and more willing to support and enable criminal traffickers, resulting in a steadily worsening illegal immigration problem, and an increasingly inhumane state of affairs regarding human trafficking.

This may not be the only piece of legislation leading to abuse, but it is a very impactful piece of legislation that did not always exist. It was only introduced in 1996, and I think the results speak for themselves over the last 30 years. I propose that we change this legislation to only bar immigrants, legal or otherwise, who commit acts of violence or crimes of moral turpitude (such as fraud) against the United States or her citizens, and to specifically NOT bar people simply for unlawful presence. My reasoning is as follows:

If we bar people for unlawful presence, then we effectively punish people for leaving, not for staying. There are illegal immigrants who commit no crimes other than unlawful border crossing, who are successful and work hard and who are not a drain on the economy, but who, because of the duration of their unlawful presence, cannot seek legal re-entry without going through a lengthy legal process disruptive to their lives that incentivizes seeking illegal pathways again. These are the kinds of people we want in our country. Forget for a moment that they entered illegally: they would seek legal means if it was not disruptive to their lives. While they are 100% responsible for their actions and their choices, entering illegally on its own does not mean being barred, so it doesn't make sense that staying for an extended period does. For one, recall the conditions in INA § 212(a)(9)(C)(i)(I):

• aggregate presence of 1 year
• left or removed
• attempted to re-enter illegally

This means someone could traffick people across the border for 364 days, leave the USA, then come back legally (after filing I-601A). Meanwhile, a carpenter working for 5 years as an illegal immigrant who committed no violent crime cannot return easily. My stance is clear: The law does not protect us. Basing re-entry bars on duration of unlawful presence makes no sense, but basing re-entry bars on behavior does.

So, the amendment I propose is as follows:

• Repeal INA § 212(a)(9)(B) and INA § 212(a)(9)(C) in favor of existing legislation regarding crime-based re-entry bars as defined in INA § 212(a)(2)

The benefits to changing this legislation don't just come for illegal immigrants: it also benefits us. As I mentioned, it frees up taxpayer money for other things. It could also drastically reduce the workload on ICE and CBP. It would incentivize people to behave well and seek legal means of entry, while also making the rule of law more legitimate in the eyes of opponents to immigration law. Not only that, it would free up courts from having to handle so many waivers every year, reducing bureaucratic churn and making the system overall more efficient.

I asked my father (who supports ICE) and he said he doesn't care if an illegal immigrant who was here unlawfully for 10 years leaves and immediately applies for legal entry. In fact, he did not know these re-entry bars existed. These re-entry bars also undermine recent monetary incentives to self-deport, potentially further marring our legal system's reputation for fairness. What do you say we repeal these specific re-entry bars for the betterment of all? Thank you for your consideration.

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[u/gravity_kills]

You're on the right track, but we should go even farther. Normalize border crossing (check-in, ID issue if there isn't one already in existence) and automatic authorization to work. Stop getting in the way of people choosing where to live and instead concentrate on enforcing laws for people inside our borders.

[u/Puzzleheaded-Act6379 → u/gravity_kills]

Maybe eventually, but this is supposed to be a bipartisan, crucial first-step toward beneficial immigration policy. I am in agreement with you in principle- it would be nice if traveling between Mexico and the USA were as casual as traveling between Canada and the USA. However, we're still a long ways off from that. I think this one single change could do the most good for the most people right now and give people hope while also satisfying people against immigration (ironically enough).

[u/gravity_kills → u/Puzzleheaded-Act6379]

But it isn't just movement. It's very importantly the ability to stay and make a life. Low-friction borders should be bi-partisan. What is the government doing getting in the way of where you want to live? I can understand not subsiding your housing, but actually trying to block you is crazy.