Five-Year Bar
Ordinarily applies after a first expedited removal or a first removal ordered in §240 proceedings initiated when the person arrived in the United States.
INA §212(a)(9)(A) and Form I-212
Prior Removal Bar and Permission to Reapply
A prior expedited removal, immigration-court removal, deportation, exclusion, reinstatement, or departure while a removal order was outstanding can prevent a person from receiving a visa or returning to the United States. Depending on the history, the bar may last five years, ten years, twenty years, or indefinitely after an aggravated-felony conviction. Form I-212 may provide discretionary permission to reapply, but it does not erase the removal or waive every other ground.
Nationwide and international immigration representation through Messersmith Law Firm, P.A.
The Statutory Framework
INA §212(a)(9)(A) Contains Two Prior-Removal Categories
Subsection (i) generally covers a person ordered removed through expedited removal under INA §235(b)(1), or after INA §240 proceedings initiated when the person arrived in the United States. A first removal ordinarily creates a five-year bar.
Subsection (ii) generally covers other people ordered removed under INA §240 or another provision of law, as well as a person who departed while a removal order was outstanding. A first qualifying removal ordinarily creates a ten-year bar.
- Second or subsequent removals can create a twenty-year bar
- An aggravated-felony conviction can make the bar permanent
- Prior consent to reapply can remove the ground for the covered removal
- Every removal and departure must be placed on one chronological timeline
Five, Ten, Twenty Years, or Permanent
Which Prior-Removal Period Applies?
The answer depends on the type and number of removals and whether an aggravated-felony conviction exists.
Ten-Year Bar
Ordinarily applies after a first removal in other circumstances or departure while a removal order was outstanding.
Twenty-Year Bar
Applies after a second or subsequent removal under the appropriate subsection. Current consular guidance generally requires twenty years outside the United States.
Permanent Aggravated-Felony Bar
A person who was removed and has also been convicted of an aggravated felony remains subject to §212(a)(9)(A) indefinitely unless consent to reapply is granted.
INA §212(a)(9)(A)(i)
The Five-Year Bar After Removal as an Arriving Person
The five-year bar commonly follows expedited removal by CBP under INA §235(b)(1). It can also apply when DHS initiated regular §240 removal proceedings upon the person’s arrival and an immigration judge ordered the person removed as inadmissible.
The agency record should identify the procedure. Common documents include Form I-860, Form I-213, a sworn statement, Notice to Appear, immigration judge order, Form I-205, fingerprints, photographs, and border-inspection records.
- Confirm whether the event was removal or withdrawal of the admission request
- Confirm whether §240 proceedings were initiated upon arrival
- Identify the date the removal was executed
- Determine whether a later removal increases the period to twenty years
- Screen the same encounter for fraud, false claim, or document grounds
INA §212(a)(9)(A)(ii)
The Ten-Year Bar After Other Removal Orders
The ten-year category generally covers removal under INA §240 or another provision when the case does not fall under the arriving-person five-year clause. It also covers a person who leaves the United States while a removal order is outstanding.
Under current Department of State guidance, the ten-year clock pauses during periods when the person is physically present in the United States without proper permission. It resumes from the point where it stopped after departure and does not reset with each entry or departure.
INA §101(g)
Departure While a Removal Order Is Outstanding Is Treated as Removal
A person does not avoid §212(a)(9)(A) merely by buying a ticket and leaving without ICE physically escorting the person. INA §101(g) generally treats departure while a final order of removal is outstanding as deportation or removal in pursuance of law.
This frequently arises after an in absentia order, denial of relief followed by departure, failure to comply with voluntary departure, stipulated removal, or an old deportation or exclusion order that was never formally executed.
- Determine when the order became administratively final
- Determine whether the person had voluntary departure and complied timely
- Identify any automatic alternate removal order
- Confirm whether a motion, appeal, or stay affected finality or execution
- Preserve objective proof of the departure date
Do Not Assume Every Border Return Was Removal
Withdrawal, Voluntary Return, Refusal, and Removal Are Different
The exact disposition controls whether INA §212(a)(9)(A) applies.
Withdrawal of Application for Admission
CBP may permit a person to withdraw the request for admission and depart. A true withdrawal ordinarily is not an expedited-removal order, although the underlying facts may create other grounds.
Voluntary Return
Informal or documented voluntary return may not constitute a removal order. Obtain the border paperwork and agency record rather than relying on the phrase used by the traveler.
Timely Voluntary Departure
Timely compliance with a valid voluntary-departure grant generally avoids execution of the alternate removal order. Unlawful presence and other departure consequences may still apply.
Expedited or Formal Removal
Form I-860, an immigration judge’s final removal order, reinstatement, or another executed removal can trigger the statutory bar.
Longer Prior-Removal Bars
Second Removal and Aggravated-Felony Consequences
A person removed two or more times may face a twenty-year bar. The analysis must count every expedited removal, immigration-court removal, reinstatement, and departure treated as removal under INA §101(g).
A person who has been removed and has also been convicted of an aggravated felony may be permanently inadmissible under §212(a)(9)(A). Current State Department guidance states that the aggravated-felony conviction can be domestic or foreign, need not have caused the removal, and can occur before or after the removal.
- Confirm that each event legally qualifies as a removal
- Analyze whether the conviction fits INA §101(a)(43)
- Review sentence, loss, controlled-substance, violence, and categorical issues
- Determine whether post-conviction relief changed the aggravated-felony analysis
INA §212(a)(9)(A) vs. §212(a)(9)(C)
Prior Removal and the Permanent Bar Are Separate Grounds
Section 212(a)(9)(A) is triggered by removal or departure under an outstanding order and imposes a time-based or aggravated-felony consent requirement.
Section 212(a)(9)(C)(i)(II) requires an additional event: entry or attempted entry without admission after a prior removal order. It is commonly called the permanent bar and ordinarily cannot be cured through a predeparture conditional I-212.
Application for Permission to Reapply
What Form I-212 Does—and Does Not Do
Consent to reapply is discretionary relief from the covered prior-removal ground.
Allows Early Admission Eligibility
Approval permits the person to seek admission before completing the applicable five-, ten-, twenty-year, or indefinite §212(a)(9)(A) period.
Does Not Rescind the Removal
The order and historical facts remain. Approval provides consent to reapply; it does not declare that the prior order was legally wrong.
Does Not Waive Other Grounds
Separate waivers or defenses may be needed for unlawful presence, fraud, criminal conduct, smuggling, false claim, medical issues, or the permanent bar.
Filing Jurisdiction Varies
The correct filing location and agency can depend on whether the applicant is inside or outside the United States, the visa classification, removal proceedings, CBP jurisdiction, and whether VAWA, T, or U relief is involved.
8 C.F.R. §212.2(j)
Advance, Conditional I-212 Approval Before Consular Departure
A person who has a final removal order, remains in the United States, and plans to apply for an immigrant visa abroad may sometimes file Form I-212 before leaving. If USCIS exercises discretion favorably, the approval remains conditional until the person actually departs under the order.
The conditional approval addresses only §212(a)(9)(A). The departure can separately trigger the three-year or ten-year unlawful-presence bar. For certain provisional waiver applicants, an approved conditional I-212 may be required before Form I-601A can be filed or approved under the applicable rules.
- Confirm that the person has a final order and will pursue immigrant visa processing
- Confirm that INA §212(a)(9)(C) does not prohibit predeparture filing
- Calculate unlawful presence through the projected departure date
- Screen for the five-year failure-to-attend ground and every other inadmissibility issue
- Do not depart until all consular risks have been evaluated
Discretionary Balancing
Factors Considered in a Form I-212 Application
There is no single qualifying-relative or extreme-hardship formula. The agency weighs the full record.
Family and Humanitarian Equities
U.S. citizen or permanent resident family, caregiving, medical needs, emotional hardship, children, aging parents, safety, and family unity.
Residence and Community Ties
Length and lawfulness of residence, education, employment, taxes, property, military service, community work, and responsible conduct.
Candor and Compliance
Accurate disclosures, cooperation, court compliance, departure history, respect for immigration laws, and correction of earlier errors.
Immigration Violations
Repeated unlawful entries, failure to depart, absconding, document use, fraud, smuggling, nonappearance, reinstatement, and violations after removal.
Criminal History and Rehabilitation
Nature, seriousness, recency, sentences, victims, restitution, treatment, rehabilitation, expungement or vacatur, and risk of recurrence.
Other Inadmissibility Grounds
The agency may deny when approval would serve no practical purpose because the person remains subject to another unwaived or unwaivable ground.
Preparing the I-212 Record
Evidence Supporting Permission to Reapply
Removal and Immigration Records
- Every Form I-860, I-862, I-205, I-213, and removal order
- Sworn statements, CBP inspection records, and expedited-removal file
- Immigration judge, BIA, federal-court, and reinstatement decisions
- Proof of each departure, removal, entry, and attempted entry
- Voluntary-departure grants and proof of compliance or failure
- Prior visa, adjustment, asylum, TPS, waiver, and I-212 filings
- USCIS, CBP, ICE, EOIR, FBI, and State Department FOIA records
- A chart identifying every applicable inadmissibility ground and remedy
Discretionary and Rehabilitation Evidence
- Applicant declaration accepting responsibility and explaining the chronology
- Family relationship, medical, psychological, and caregiving records
- Employment, tax, education, property, and community-service evidence
- Country conditions and relocation or separation consequences
- Criminal dispositions, probation completion, restitution, and rehabilitation
- Evidence of lawful conduct and no recurrence
- Letters from family, employers, professionals, and community members
- Proof that all other inadmissibility grounds are waived, expired, or inapplicable
I-212 vs. Reopening the Removal Order
Permission to Reapply Is Not Always the Best First Remedy
Form I-212 assumes the removal order exists and asks DHS to permit a new application for admission. When the order resulted from defective notice, a mistaken identity, lack of jurisdiction, agency error, ineffective assistance, an invalid waiver, changed law, or another recognized ground, reopening or rescission may be more important.
If EOIR or DHS reopens and ultimately rescinds, vacates, or terminates the order, the factual and legal basis for §212(a)(9)(A) may change. A pending motion alone does not produce that result and generally does not automatically stay removal.
- Obtain the complete court and DHS file before choosing the remedy
- Review notice, service, address, age, competency, and hearing history
- Review eligibility for relief that was unavailable or not presented
- Determine whether a stay of removal is needed while the motion is pending
- Coordinate reopening with consular, I-601A, and I-212 timing
Overlapping Grounds
A Prior Removal Commonly Creates More Than One Immigration Problem
Unlawful Presence
Departure or removal after more than 180 days or one year of unlawful presence may trigger a three-year or ten-year bar requiring I-601 or I-601A analysis.
Permanent Bar
Entry or attempted entry without admission after removal can trigger INA §212(a)(9)(C)(i)(II).
Failure to Attend a Hearing
Departure or removal after failure to attend without reasonable cause can trigger a separate five-year bar that Form I-212 does not waive.
Fraud or Misrepresentation
False statements or documents at the border may produce permanent §212(a)(6)(C)(i) inadmissibility and require separate waiver analysis.
Criminal Reentry
Reentry after removal may create federal criminal exposure under 8 U.S.C. §1326 in addition to civil inadmissibility and reinstatement.
Criminal Inadmissibility
The conviction underlying removal may independently create CIMT, controlled- substance, multiple-conviction, trafficking, or other grounds.
Temporary Nonimmigrant Travel
INA §212(d)(3)(A) May Provide Separate Temporary Relief
A nonimmigrant visa applicant subject to §212(a)(9)(A) may be considered for temporary waiver relief under INA §212(d)(3)(A), depending on the applicant’s visa category, circumstances, risk, travel purpose, and the processing route.
A nonimmigrant waiver can permit temporary travel without providing the same permanent consent effect as an approved Form I-212. The appropriate procedure depends on the specific §212(a)(9) subsection, time elapsed, and agency jurisdiction.
- Explain the legitimate temporary travel purpose
- Address seriousness, recency, immigration compliance, and risk
- Document strong residence and economic ties outside the United States
- Resolve any criminal, fraud, document, or security grounds separately
Related Removal-Bar Pages
Review the Full Removal, Departure, and Reentry History
Expedited Removal
Review CBP removal, the five-year bar, sworn statements, fraud findings, and correction strategies.
Review expedited removal →Permanent Bar
Review entry or attempted entry without admission after unlawful presence or removal.
Review INA §212(a)(9)(C) →Failure to Attend
Review the separate five-year bar, reasonable cause, notice, and in absentia orders.
Review INA §212(a)(6)(B) →Reentry After Removal
Review reinstatement, permanent-bar, I-212, and criminal reentry consequences.
Review reentry consequences →Ten-Year Unlawful-Presence Bar
Review the separate departure-triggered bar after one year of unlawful presence.
Review INA §212(a)(9)(B) →Case-Specific Removal Review
Obtain an individualized I-212, reopening, waiver, or waiting-period strategy.
Schedule a consultation → Experienced Immigration Counsel
Representation for Prior Removal and Form I-212 Cases
Messersmith Law Firm, P.A. represents clients facing five-year, ten-year, twenty-year, and aggravated-felony prior-removal bars, expedited-removal consequences, conditional I-212 filings, consular refusals, I-601A coordination, and permanent-bar allegations.
These matters often require complete CBP, ICE, USCIS, EOIR, and Department of State records; classification of each removal; proof of time outside the United States; analysis of unlawful reentry; review of criminal convictions; and comparison of Form I-212 with reopening, rescission, waiting, or nonimmigrant waiver options.
A strong I-212 filing should address the reason for removal and every later violation directly, demonstrate candor and rehabilitation, document family and humanitarian equities, and establish that approval will have practical value because all other grounds are resolved.
Frequently Asked Questions
Questions About Prior Removal and Form I-212
These answers provide general information. The correct result depends on every removal document, order date, departure, time inside and outside the United States, conviction, later entry, filing jurisdiction, and other inadmissibility grounds.
How long is the bar after expedited removal?
A first expedited removal under INA Section 235(b)(1) ordinarily creates a five-year bar under INA Section 212(a)(9)(A)(i). A second or subsequent removal may create a twenty-year bar, and an aggravated-felony conviction can create permanent inadmissibility.
When does the ten-year prior-removal bar apply?
INA Section 212(a)(9)(A)(ii) generally applies after removal under another provision of law or departure while a removal order was outstanding. A first such removal ordinarily creates a ten-year bar, subject to the statute, the order, time spent in the United States, and any consent to reapply.
Does the ten-year prior-removal clock run while the person is in the United States?
Current Department of State guidance treats time spent in the United States without proper permission as pausing the ten-year Section 212(a)(9)(A)(ii) period. The clock resumes from where it stopped after departure and does not restart with each entry or departure.
What creates the twenty-year prior-removal bar?
A second or subsequent removal can trigger a twenty-year bar under INA Section 212(a)(9)(A)(i) or (ii), as applicable. Current consular guidance generally requires the twenty years to be spent outside the United States.
When is the prior-removal bar permanent?
A person who has been removed and has also been convicted of an aggravated felony may be permanently inadmissible under INA Section 212(a)(9)(A). The aggravated-felony conviction need not have caused the removal and may have occurred before or after it.
Is voluntary departure the same as removal?
Not always. Timely compliance with voluntary departure generally is not itself a removal order. However, departure while a final removal order is outstanding is treated as removal under INA Section 101(g), and failure to comply with voluntary departure may cause the alternate removal order and additional penalties to take effect.
What is Form I-212?
Form I-212 requests discretionary consent to reapply for admission before the applicable Section 212(a)(9)(A) period has ended or, in qualifying permanent-bar cases, after the statutory prerequisites are met. Approval removes only the covered consent-to-reapply ground and does not waive other inadmissibility grounds.
Can Form I-212 be filed before departing the United States?
A person with a final removal order who plans immigrant visa processing abroad may sometimes request advance, conditional approval under 8 CFR 212.2(j). The approval becomes effective upon the qualifying departure and applies only to INA Section 212(a)(9)(A). It does not protect against unlawful-presence or other grounds triggered by departure.
What factors are considered in an I-212 decision?
USCIS balances all favorable and unfavorable circumstances, including the reason for removal, recency, immigration violations, criminal history, candor, rehabilitation, length and lawfulness of residence, family ties, hardship, community contributions, employment, need for the applicant's services, and whether other inadmissibility grounds remain.
Should a person file I-212 or challenge the removal order?
It depends on the record. Form I-212 seeks discretionary consent while accepting that the prior removal exists. A motion to reopen, rescind, reconsider, or terminate may be more appropriate when notice was defective, the order was entered in error, relief was unavailable because of misconduct, or the order is otherwise legally challengeable. A pending motion does not automatically erase or stay the order.
Case-Specific Legal Analysis
Do Not File Form I-212 Until Every Removal and Reentry Is Classified
Determine which subsection applies, how the clock runs, whether a second removal or aggravated felony changes the period, whether the order can be reopened, whether conditional approval is available, and whether unlawful presence, permanent-bar, fraud, criminal, or failure-to-attend grounds require separate relief.
This page provides general information and does not create an attorney-client relationship or constitute legal advice. Immigration consequences depend on the specific orders, dates, departures, entries, convictions, records, agency jurisdiction, law, and benefit involved.