Our Client, a citizen of Canada and national of Iran, was found inadmissible under INA § 212(a)(3)(A)(ii) [security related ground] in January 2003 for failure to register her departures from the United States under the National Security Entry Exit Registration System (“NSEERS”).

In 2002, at age 17, our Client began traveling to the U.S. by herself to visit her then-boyfriend. She was properly registered for the National Security Entry Exit Registration System (NSEERS) by CBP because she was born in Iran. Unfortunately, our Client did not properly understand all of the parameters of the NSEERS program and unknowingly, violated its provisions by failing to register her departures from the U.S. and surrender her I-94’s. In fact, our Client understood that she was required to keep her I-94’s in her passport.

In January 2003, during pre-flight inspection at the Montreal Airport, CBP refused our Client admission under INA § 212(a)(3)(A)(ii), alleging that she was inadmissible for having violated the provisions of the NSEERS program. INA § 212(a)(3)(A)(ii) provides that:

Any alien who a consular officer of the Attorney General knows, or has reasonable grounds to believe, seeks to enter the United States to engage solely, principally, or incidentally in any unlawful activity is inadmissible.

Our Client was found inadmissible under INA § 212(a)(3)(A)(ii) for failing to register her departures from the United States as required under the NSEERS program. Her failure to register her departures in turn created a presumption of inadmissibility pursuant to 8 C.F.R. 264.1(f)(8)(ii), which states:

Any nonimmigrant alien subject to special registration who fails, without good cause, to be examined by an inspecting officer at the time of his or her departure and to have his or her departure recorded by the inspecting officer shall thereafter be presumed to be inadmissible under, but not limited to, section 212(a)(3)(A)(ii) of the Act (8 U.S.C. 1182(a)(3)(A)(ii)), as an alien whom the Secretary of Homeland Security has reasonable grounds to believe, based on the alien’s past failure to confirm with the requirements for special registration, seeks to enter the United States to engage in unlawful activity.

However, 8 C.F.R. § 264.1(f)(8)(iii) also specifies:

An alien may overcome the presumption of inadmissibility set out in paragraph (f)(8)(ii) by making a showing that he or she satisfies conditions set by the Secretary of Homeland Security and the Secretary of State. If a consular officer, in adjudicating a new visa application by an alien that previously failed to register his or her departure from the United States, finds good cause existed for the alien’s failure to register departure or that the alien is not inadmissible under section 212(a)(3)(A)(ii) of the Act, the inspecting officer at the port-of-entry, while not bound by the consular officer’s decision, will consider this finding as a significantly favorable factor in determining whether the alien is admissible.

In particular, pursuant to DHS policy, the foreign national must prove that his or her failure to comply with the NSEERS registration requirement was not willful. In an April 16, 2012 memorandum released by the Department of Homeland Security (“DHS”) entitled Department of Homeland Security Guidance on Treatment of Individuals Previously Subject to the Reporting and Registration Requirements of the National Security Entry and Exit Registration System, DHS clarified its policy on treatment of individuals who were previously subject to, but failed to comply with, NSEERS requirements.

In pertinent part, the memorandum states that noncompliance with NSEERS requirements, in and of itself, is not a sufficient basis for a finding of inadmissibility. Specifically, the memorandum states that negative immigration consequences may apply* only* where DHS personnel have determined, based on the totality of the evidence, that a foreign national’s NSEERS violation was willful.

Pursuant to the April 16, 2012 DHS memorandum, a “‘willful’ noncompliance will be that which was deliberate, voluntary, or intentional as distinguished from that which was involuntary, unintentional, or otherwise reasonably excusable.” Furthermore, the burden rests on the foreign national to establish that his or her failure to comply with an NSEERS requirement was not willful and not based on personal inconvenience or fear or adverse immigration consequences.

Relying on the applicable regulations and DHS memo, we argued that our Client’s noncompliance with the NSEERS program was unintentional and not willful. We assisted our Client in preparing a personal statement detailing her understanding of the NSEERS program, why she failed to register her departures and surrender her I-94’s, and how she never properly understood the complete parameters of the NSEERS program and thought she was properly complying with the NSEERS program. We also explained to CBP in our submission that our Client had no criminal record, had no reason to avoid registering her departures and was engaging in permissible visitor activities.

After several months of advocacy with CBP, we accompanied our Client to our local Port of Entry to present her for an interview. A few months later, most recently, we were invited to present our Client for admission and inspection in B-2 status. She was successfully admitted and her records in CBP’s database have been updated. Our Client is no longer inadmissible to the U.S. under INA §212(a)(3)(A)(ii) and will be able to now enter the U.S. in the future – whether as an immigrant or as a non-immigrant. This is an extremely major victory for both our Client and our firm – especially given the seriousness of her charge of inadmissibility under a security-related ground and the fact that there is no waiver available to waive this ground of inadmissibility.