Typically, I blog about only immigration opinions that relate to criminal convictions, but I had to address this recent decision on the so-called "permanent bar."
The Ninth Circuit held that the noncitizen was inadmissible under INA 212(a)(9)(C)(i)(I) because she reentered the U.S. without admission after a prior period of unlawful presence of more than a year. It said the unlawful presence accrued between 1981 and 1983. The only problem with that finding is that periods of time before April 1, 1997, do not count as "unlawful presence" for purposes of section 212(a)(9)(C)(i)(I), at least according to USCIS. See Adjudicator's Field Manual, 40.9.2(a)(9)(a).
USCIS's interpretation is well founded given the law that created section 212(a)(9)(C)(i)(I) provided for a general effective date of April 1, 1997, and did not specify a different effective date for that particular provision. See IIRAIRA sec. 301(b), 309(a). Indeed, the statutory term "unlawful presence" did not exist in 1981, 1983, or any other time before the enactment of IIRAIRA.
Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/21/09-72059.pdf.