Matter of Torres-Garcia: Permission to Reapply and the Prior-Reentry Bar

In Matter of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), the Board of Immigration Appeals (BIA) addressed the interplay between administrative permission to reapply for admission after removal and the permanent inadmissibility bar imposed on individuals who reenter the United States unlawfully after being ordered removed. The decision established two core administrative holdings that define modern enforcement of section 212(a)(9)(C) of the Immigration and Nationality Act (INA):

• An alien who reenters the United States without admission after having previously been removed is inadmissible under INA section 212(a)(9)(C)(i)(II), 8 U.S.C. § 1182(a)(9)(C)(i)(II) (2000), even if the alien obtained the Attorney General's permission to reapply for admission prior to reentering unlawfully.
• An alien is statutorily ineligible for a waiver of inadmissibility under the first sentence of INA section 212(a)(9)(C)(ii) unless more than 10 years have elapsed since the date of the alien's last departure from the United States.

Detailed Chronology and Procedural Posture

Board Member Pauley wrote for the panel with Acting Vice Chairman Osuna and Board Member Filppu. The decision contains no separate concurrence or dissent. Torres-Garcia, 23 I. & N. Dec. at 866.

The respondent, Honorio Torres-Garcia, was a 30-year-old native and citizen of Mexico who initially entered the United States without inspection in 1987. In 1997, he married a United States citizen. In November 1998, he was removed from the United States to Mexico pursuant to an in absentia order of removal issued by an Immigration Judge.

In December 1998, while residing in Mexico, the respondent filed an application with the Immigration and Naturalization Service (INS, now Department of Homeland Security, DHS) requesting permission to reapply for admission after removal. On Form I-212 (Application for Permission to Reapply for Admission Into the United States After Deportation or Removal), completed by his wife, the respondent cited his U.S. citizen family ties and stated his intention to pursue a family-based immigrant visa petition. In February 2000, while the respondent remained in Mexico, DHS approved his Form I-212 application.

Rather than awaiting the processing and issuance of an immigrant visa by a U.S. consulate abroad, the respondent reentered the United States without being admitted or paroled in May 2000. In early 2001, his wife filed a Form I-130 immigrant visa petition on his behalf, which established a priority date of April 20, 2001 (qualifying the respondent under the grandfathering provisions of INA section 245(i)). DHS approved the visa petition in March 2002.

After the petition was approved, the respondent applied for adjustment under INA section 245(i). In March 2003, he appeared with his wife for an interview at a DHS field office. During the interview, the DHS officer discovered that the respondent had reentered without inspection in May 2000 following his November 1998 removal. The officer denied the adjustment application, took the respondent into custody, and served him with a Notice to Appear (Form I-862) charging him with removability under INA section 212(a)(6)(A)(i) as an alien present without admission or parole. DHS filed the Notice to Appear in the Dallas, Texas Immigration Court in May 2003.

Before the Immigration Judge, the respondent conceded removability and sought to renew his application for adjustment of status under section 245(i). On January 21, 2004, the Immigration Judge issued a decision pretermitting the adjustment application. The Immigration Judge concluded that:

• The respondent's unlawful reentry in May 2000 rendered him inadmissible under INA section 212(a)(9)(C)(i)(II);
• The respondent was ineligible for any waiver of that inadmissibility ground; and
• The prior Form I-212 approval granted by DHS in February 2000 was ineffective to cure or waive inadmissibility under section 212(a)(9)(C)(i)(II).

The Immigration Judge granted voluntary departure with a 60-day period. The respondent filed a timely appeal with the Board of Immigration Appeals.

Torres-Garcia, 23 I. & N. Dec. at 866–68.

Statutory Provisions and Legal Framework

The legal dispute required the Board to analyze section 301(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-576, which created INA section 212(a)(9). Two distinct subsections of section 212(a)(9) were central to the Board's analysis:

INA Section 212(a)(9)(A)(ii) and (iii)

Section 212(a)(9)(A)(ii) provides that any alien who has been ordered removed under INA section 240 or any other provision of law, and who seeks admission within 10 years of departure or removal (or within 20 years in cases of multiple removals, or at any time if convicted of an aggravated felony), is inadmissible. Section 212(a)(9)(A)(iii) provides an exception if, prior to the date of re-embarkation abroad or attempt to be admitted, the Attorney General (now Secretary of Homeland Security) consents to the alien reapplying for admission.

INA Section 212(a)(9)(C)(i)(II) and (ii)

Section 212(a)(9)(C) addresses recidivist immigration violators and provides in pertinent part:

• (i) In general: Any alien who (I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or (II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.
• (ii) Exception: Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.

Precise Legal Questions Before the Board

The Board framed the sole legal question on appeal: Whether an alien who reentered the United States without admission after having previously been removed is inadmissible under INA section 212(a)(9)(C)(i)(II) where, prior to reentering unlawfully, he had obtained permission to reapply for admission after removal under INA section 212(a)(9)(A)(iii).

Torres-Garcia, 23 I. & N. Dec. at 868.

Step-by-Step Analysis and Statutory Reasoning

Board Member Pauley authored the opinion for a panel that included Acting Vice Chairman Osuna and Board Member Filppu. The Board affirmed the Immigration Judge's pretermission of adjustment of status through the following step-by-step statutory reasoning:

1. Inadmissibility Under Plain Statutory Text

The Board observed that the respondent was removed in November 1998 pursuant to an in absentia removal order issued under INA section 240. In May 2000, he crossed the border surreptitiously without being admitted or paroled. Under the plain language of INA section 212(a)(9)(C)(i)(II), those facts established inadmissibility as a matter of law.

Torres-Garcia, 23 I. & N. Dec. at 869–70.

2. Legal Function of Form I-212 Consent Under Section 212(a)(9)(A)

The respondent argued that the DHS Form I-212 approval in February 2000 insulated him against subsequent inadmissibility allegations arising from his May 2000 reentry. The Board rejected this contention as a fundamental misconception of the scope of Form I-212 consent.

When the respondent was removed in November 1998, he became inadmissible under INA section 212(a)(9)(A)(ii) for 10 years. The February 2000 Form I-212 approval granted consent under section 212(a)(9)(A)(iii), which simply removed section 212(a)(9)(A)(ii) as an obstacle to obtaining a lawful entry document. The Board emphasized: An approved request for permission to reapply for admission is not a visa, reentry permit, or entry document; it is merely evidence that the Government will not bar the alien from acquiring a visa under section 212(a)(9)(A). It does not authorize physical reentry without admission.

To enter lawfully after receiving Form I-212 consent, the respondent was required to follow consular procedures and obtain an immigrant visa under INA section 212(a)(7)(A). By surreptitiously crossing the border in May 2000 instead of acquiring an immigrant visa, the respondent committed a new violation that triggered section 212(a)(9)(C)(i)(II).

Torres-Garcia, 23 I. & N. Dec. at 869–71.

3. Statutory Differences Between Section 212(a)(9)(A) and Section 212(a)(9)(C)

The Board highlighted crucial structural differences between the two statutory provisions:

• Section 212(a)(9)(A) sets temporary bars (5 or 10 years) that can be waived at any point during that period if advance consent is requested prior to embarkation.
• Section 212(a)(9)(C)(i) imposes a permanent bar without temporal limitation. Under section 212(a)(9)(C)(ii), an alien subject to section 212(a)(9)(C)(i) can only request permission to reapply if they are seeking admission more than 10 years after the date of their last departure from the United States.

Because the respondent's last departure occurred in November 1998, and fewer than 10 years had elapsed when he sought relief, he was statutorily ineligible for consent under section 212(a)(9)(C)(ii).

Torres-Garcia, 23 I. & N. Dec. at 870–71.

4. Rejection of Perez-Gonzalez v. Ashcroft and 8 C.F.R. § 212.2

The respondent relied on Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), which had held that 8 C.F.R. § 212.2 permitted an alien inadmissible under section 212(a)(9)(C)(i) to apply for retroactive (nunc pro tunc) Form I-212 permission in conjunction with an adjustment of status application under INA section 245(i) while remaining inside the United States.

The Board explicitly rejected the Ninth Circuit's rationale, holding that it contradicted the statutory language and regulatory structure of the INA:

• Historical origin of 8 C.F.R. § 212.2: The regulation at 8 C.F.R. § 212.2 was promulgated in 1991 to implement former INA section 212(a)(6)(B) following the Immigration Act of 1990 (IMMACT), Pub. L. No. 101-649, 104 Stat. 4978. It referenced 5-year and 20-year exclusion bars from repealed law and was never updated to implement the comprehensive changes enacted by IIRIRA in 1996. Consequently, 8 C.F.R. § 212.2 cannot be construed as an administrative implementation of INA section 212(a)(9)(C)(ii).
• Regulatory conflict with statutory text: Even if 8 C.F.R. § 212.2 were applicable, regulations cannot supersede clear statutory mandates. INA section 212(a)(9)(C)(ii) unambiguously conditions waiver eligibility on the alien remaining outside the United States for more than 10 years after their last departure. Congress granted no authority to the Attorney General or Secretary of Homeland Security to create less restrictive retroactive waivers by regulation.
• Impermissible statutory policy result: Allowing an alien to obtain a retroactive waiver under section 212(a)(9)(C)(ii) while remaining inside the United States would place individuals who unlawfully reenter in a better legal position ("asking forgiveness") than individuals who obey the law by remaining abroad ("asking permission"). Such an interpretation frustrates Congress's intent to deter recidivist illegal entries.

Torres-Garcia, 23 I. & N. Dec. at 871–76.

Exact Disposition and Orders Issued

The Board entered a comprehensive final order:

• Appeal Dismissed: The respondent's appeal from the Immigration Judge's January 21, 2004 decision was dismissed.
• Pretermission Affirmed: The Immigration Judge's order pretermitting the respondent's Form I-485 application for adjustment of status under INA section 245(i) was affirmed.
• Voluntary Departure Granted: Pursuant to INA section 240B(b) and 8 C.F.R. §§ 1240.26(c) and (f), the respondent was permitted to voluntarily depart the United States without expense to the Government within 60 days from the date of the order (or any extension granted by DHS).
• Alternate Removal Order and Statutory Notice: The Board ordered that if the respondent failed to depart within the designated period, he would be removed as ordered by the Immigration Judge and subject to a civil penalty of $1,000 to $5,000, as well as a 10-year statutory bar to discretionary relief under INA sections 240B, 240A, 245, 248, and 249.

Torres-Garcia, 23 I. & N. Dec. at 876–77.

Practical Significance, Current Law, and Administrative Framework

Matter of Torres-Garcia remains a foundational precedent governing section 212(a)(9)(C) inadmissibility across federal immigration administrative law. The ordinary consent framework in current USCIS instructions reflects its central distinction. Historical litigation about retroactive relief is not permission to reenter without authorization:

Inapplicability of Section 245(i) Adjustment to Section 212(a)(9)(C) Bars

The decision confirmed that while INA section 245(i) allows noncitizens who entered without inspection to adjust status upon payment of a statutory fine, section 245(i) does not overcome inadmissibility under INA section 212(a)(9)(C)(i). An applicant must be independently admissible to receive adjustment of status under section 245(i)(2)(A).

The ordinary consent route requires more than ten years outside the country

Under current law, an applicant subject to INA section 212(a)(9)(C)(i)(II) cannot cure inadmissibility through Form I-212 unless they have resided physically outside the United States for more than 10 years following their last departure. Time spent unlawfully inside the United States after a prior removal does not satisfy or accrue toward this 10-year requirement.

Distinction Between Form I-212 Consent and Other Waiver Forms

Form I-212 is limited specifically to consenting to reapplication after removal. It does not act as a stay of deportation (Form I-246), does not waive unlawful presence bars under INA section 212(a)(9)(B) (which require Form I-601 or Form I-601A), and does not waive fraud or criminal inadmissibility grounds.

Current guidance and the historical holding

The current USCIS filing-address table cites Torres-Garcia when describing the ordinary route for a person physically present in the United States and inadmissible under §212(a)(9)(C). Benefit-specific exceptions require a separate assessment. For the October 7, 2026 filing-location update and a practical record checklist, see the I-212 removal and reentry timeline guide.

Related analysis

For the practical distinction between earlier consent and a later entry, read our I-212 removal and reentry timeline guide. The immigration practice page provides contact information for discussing the complete record.