In INA 212(a)(9)(B)(i), what does "other than an alien lawfully admitted for permanent residence" mean?

Question

INA 212(a)(9)(B)(i) states that

Any alien (other than an alien lawfully admitted for permanent residence) who—

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a(e) of this title) prior to the commencement of proceedings under section 1225(b)(1) of this title or section 1229a of this title, and again seeks admission within 3 years of the date of such alien’s departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States,

is inadmissible.

There are two ways to interpret "other than an alien lawfully admitted for permanent residence". It could mean (1) that a lawful permanent resident who is returning to the US cannot be found inadmissible under INA 212(a)(9)(B)(i), or (2) any departure or removal from the United States while a lawful permanent resident does not trigger an INA 212(a)(9)(B)(i) bar.

(1) seems to be the most straightforward interpretation based on the plain wording of the statute. Plus, in some rare cases, it is possible for a person to obtain LPR status through a route to which 212(a)(9)(B)(i) bars, by statute, do not apply; and presumably such a person, after having obtained LPR status, has no restrictions on their ability to travel in and out of the US compared with any other LPR. It would seem bizarre and absurd to reject (1).

We can easily think of a hypothetical scenario that tests (2). A tourist entered the United States on January 1, 2016. Their period of authorized stay expired on July 1, 2016. They remained in the US unlawfully. Then, on August 1, 2017 (i.e., after more than a year of unlawful presence), they married a US citizen and applied for adjustment of status. This was granted on September 3, 2018. On December 21, 2018, they travelled outside the US for the first time since their arrival for a brief vacation, and returned to the US without incident (see (1)). Eventually, at some point in 2021, they stayed outside the US for too long, and, having abandoned their US residence, decided to submit Form I-407 to avoid any complications with returning to the US. Now, in 2022, they decide to try to move back to the US with their spouse. The US citizen spouse submits a new I-130, and the noncitizen spouse applies for an immigrant visa. What will happen? Will the consular officer notify them that due to their previous period of unlawful presence, they are inadmissible until December 21, 2028?

My hunch is that in the above scenario, the person is not considered inadmissible until December 21, 2028 because their departure from the United States after accruing more than 1 year of unlawful presence occurred while they were an LPR. In other words I think interpretation (2) is correct, but (1) is also correct: INA 212(a)(9)(B)(i) does not make LPRs inadmissible, nor is it triggered by any departure of a noncitizen while they hold LPR status. However I have not been able to find any relevant case law.

Answer 1

I think that the plain meaning points to (1). The "other than an alien lawfully admitted for permanent residence" modifies who "is admissible", in the present tense, i.e. at the time of seeking admission. It doesn't modify the departure.

Also, if it were (2), there would be weird issues like, if the departure doesn't count as a departure for the purposes of this section, then what about the unlawful presence? Does it stay accrued until a future departure, or does it just get wiped clean with no consequences? If it stays accrued, then in some cases it may be worse than interpretation (1), because interpretation (1) starts the 10-year period earlier while it doesn't affect you while you are a permanent resident, so that if you lose your permanent residency in the future the ban will be over earlier.

The only case I know where a departure doesn't count as a departure for the purposes of this ban is when you leave on a grant of Advance Parole, as ruled by the BIA decision in Matter of Arrabally. But the reasoning in that case was that Advance Parole was specifically granted to allow the person to travel abroad an preserve their eligibility for Adjustment of Status, which a ban would defeat. But this reasoning wouldn't really apply to the case in this question, because permanent residency isn't specifically granted for travel abroad, and a returning permanent resident isn't subject to this ban anyway, so interpreting it as a departure doesn't defeat the maintenance of permanent residency.

The issue you are asking about is rare. In most cases, when people become permanent residents, they stay permanent residents or naturalize to become US citizens, in which case they do not have to worry about this ban after becoming permanent residents. Only if they lose permanent residency would this question come up. I am not aware of any guidance or case law regarding this case.

Answer 2

INA 212(a)(9)(B)(i) is not applicable to lawful permanent residents at all

The clause is unambiguous. It applies to aliens except for "an alien lawfully admitted for permanent residence"; the clause simply doesn't apply to an alien that falls into that category.