Am I inadmissible if I was granted voluntary departure?

QUESTION: I am hoping you can help me understand a bit more about my case.  In February 2019, as I was coming out of court I was arrested by ICE agents.  From there I was transferred to an ICE detention center.  I remained there until April when I was granted voluntary departure to my home country of Mexico.  I was detained because in July 2013, I entered the U.S. by visa and I-94.  I was 16 years old at the time and did not depart the U.S. by the required date in December 2013.  While under immigration court proceedings I was granted voluntary departure.  I currently have a 3 year old daughter in the United States and I would like to know when I could possibly return, as I was not (I think) given a period of non re-entry. 

REPLY:  Thank you for submitting your question.  While I cannot provide you with any case-specific advice without first reviewing your case in detail, I can provide you with some general information that may be useful.

There are several reasons why a non-U.S. citizen can be barred from entering/returning to the U.S.  One such reason is if the individual has been ordered removed from the U.S. under INA § 240 or § 235(b)(1).  This would classify the individual as an “alien previously removed” and inadmissible under INA § 212(a)(9)(A).  If, however, an individual is granted voluntary departure as an alternative to being ordered removed, s/he will not be inadmissible as “an alien previously removed” and thus will not be barred under INA § 212(a)(9)(A).

It is important to note, however, that even though an individual may not be inadmissible under INA § 212(a)(9)(A) as an alien previously removed, s/he may still be inadmissible to the U.S. for a different reason, especially if the individual entered the U.S. illegally or overstayed after making a lawful entry. 

One possible ground of inadmissibility is under INA § 212(a)(9)(B), which renders inadmissible any individual who has been unlawfully present in the U.S. for a period of more than 180 days.  For an individual who enters the U.S. lawfully with a visa and is granted an authorized period of stay, the period of unlawful presence begins to accrue on the date following the expiration of the authorized period of stay (the departure date stamped into passport and Form I-94).  If the individual remains in the U.S. for a period of more than 180 days but less than one (1) year after the expiration of the authorized period of stay, s/he will be inadmissible to the U.S. for a period of three (3) years following the date of actual departure from the U.S.  If an individual remains in the U.S. for a period of one (1) year or more beyond the authorized period of stay, s/he will be inadmissible to the U.S. for a period of 10 years following the date of departure from the U.S.

There are exceptions to the accumulation of unlawful presence, including an exception for minors.  Under the INA, no period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the U.S.  INA § 212(a)(9)(B)(iii).  In such cases, however, the individual will begin to accumulate unlawful presence as of his/her 18^th birthday. 

Even though you entered the U.S. and originally overstayed as a minor, it sounds as though you may be inadmissible based upon the unlawful presence accumulated after your 18^th birthday.  The good news is that there are waivers available for unlawful presence.  The type of waiver required will depend upon the reason(s) you wish to enter the U.S.

If you would like to submit additional information about your case and receive a complete professional analysis, please consider scheduling a consultation.  I would be happy to review your case in detail and provide you with my analysis and recommendation.