The Oklahoma Bar Journal October 2025

In this example, Yamilet trig gered the 10-year unlawful pres ence bar under §212(a)(9)(B)(i)(II) of the INA when she departed the U.S. after accruing more than one year of unlawful presence. However, because Yamilet was admitted using her border crossing card when she returned to the U.S., she did not trigger the permanent bar under §212(a)(9)(C)(ii) of the INA. Therefore, because more than 10 years have passed since Yamilet departed the United States, she is no longer inadmissible under §212(a)(9)(B)(i)(II) of the INA. States in 2000 without inspection. In 2002, he left the U.S. to help his family settle the estate of his late grandfather. Miguel returned one week later without inspection. He now wishes to apply for adjust ment of status based on a family- based petition. In this example, Miguel trig gered the 10-year unlawful pres ence bar under §212(a)(9)(B)(i)(II) of the INA when he departed the U.S. after accruing more than one year of unlawful presence. However, because Miguel returned to the States without inspection, he is inadmissible even though the 10-year period of inadmissibility has passed. This is because when Miguel reentered the U.S. unlaw fully, he triggered the permanent bar under Section 212(a)(9)(C)(ii) of the INA. Therefore, he is per manently barred and will never be able to seek lawful permanent residence through a family-based petition. Example Two Miguel entered the United

permanent bar under §212(a)(9)(C)(ii) of the INA. Therefore, it is of the utmost importance to carefully screen individuals when assessing their eligibility for adjustment of status under Duarte-Gonzalez .

Example Three Laura entered the United States without inspection in December 1999 and departed to visit family in August 2000. She returned one week later without inspection and now wishes to apply for adjust ment of status. In this example, Laura triggered the three-year unlawful presence bar under §212(a)(9)(B)(i)(I) of the INA when she departed the U.S. after accruing more than 180 days but less than one year of unlaw ful presence. However, because it has now been more than three years since Laura departed the U.S., she is no longer inadmissible under §212(a)(9)(B)(i)(I) of the INA. Additionally, Laura is not subject to the permanent bar under §212(a)(9)(C)(ii) of the INA because it is only applicable to noncitizens who accrue more than one year of unlawful presence, depart and then reenter or attempt to reenter unlawfully. Therefore, Laura is eligible for adjustment of status. FINAL THOUGHTS The ruling in Duarte-Gonzalez makes it clear that the three- and 10-year periods of inadmissibil ity can run while the individual is inside the U.S. based on the plain language of the statute. This is a positive development that provides clarity for individ uals who are inadmissible due to their previous unlawful presence and departure and may allow more noncitizens to qualify for adjustment of status. However, as discussed above, there are very few factual scenarios in which a noncitizen who has triggered the three- or 10-year unlawful pres ence bar may return to the U.S. before the requisite time period has run without triggering the

ABOUT THE AUTHOR

Katelyn N. Wade is an immigration attorney at Doerner, Saunders, Daniel & Anderson LLP with experience in

employment-based petitions, work visas, family petitions, citizenship applications, work authorization cards, deportation defense, waivers and appeals. She is registered to practice before the Executive Office for Immigration Review and the Bureau of Indian Affairs and has experience working with U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement and the Department of Labor. Ms. Wade has also successfully represented clients in cases involving L1-A visas, EB-1 visas, national interest waivers and cancellation of removal. 1. 28 I&N Dec. 688 (BIA 2023). 2. INA §212(a)(9)(B)(i)(II). 3. Id. 4. See Jose Armando Cruz, A087-241-021 (April 9, 2014); see also Jose Tapia-Cervantes, A208-939-645 (Dec. 21, 2018). 5. USCIS, Policy Memorandum: INA 212(a) (9)(B) Policy Manual Guidance (June 24, 2022), https://bit.ly/4fW8X8Y. 6. Duarte-Gonzalez, 28 I&N at 691. 7. Matter of Duarte-Gonzalez , 28 I&N 10. Id. at 690. 11. Id. at 691. 12. Id. (citing Hamdan v. Rumsfeld , 548 U.S. 557, 578 (2006)). 13. Id. at 691. 14. Id. at 691, n.4. 15. Id. 16. Id. at 691. Dec. 688, 689 (BIA 2023). 8. Id . 9. Id. at 691. ENDNOTES

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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