Section 211(b)—Readmission Without Required Documents

            Pursuant to section 211(b) of the Act, notwithstanding the provisions of INA Section 212(a)(7)(A), a returning resident immigrant, or “special immigrant,” as defined in section 101(a)(27)(A) of the Act, who is otherwise admissible may be readmitted to the U.S. by the district director in his discretion, and pursuant to such conditions as may be prescribed by regulation, without being required to obtain a passport, immigrant visa, reentry permit or other documentation. INA Section 211(b). Denial of a waiver by the district director is not appealable but shall be without prejudice to renewal of an application and reconsideration in proceedings before an immigration judge. 8 C.F.R. Section 1211.4.

 

            Section 101(a)(27)(A) of the Act defines “special immigrant” as an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad. The Board of Immigration Appeals (BIA) has held that the term "temporary," as used in INA Section 101(a)(27), is not inflexibly defined and varies in application depending upon the facts and circumstances of each particular case. Matter of Huang, 19 I. & N. Dec. 749, 753 (BIA 1988). Where an applicant for admission has a colorable claim to returning resident status, DHS has the burden of proving, by clear, unequivocal, and convincing evidence, that the applicant is not eligible for admission. Id. at 753-54.

            If an applicant was a minor during the period in question, the Court must look to the intent of the applicant’s parents to determine whether he intended to abandon his residence in the United States. See Matter of Zamor, 17 I. & N. Dec. 395, 397 (BIA 1980) (finding that the intent of the parents regarding whether they abandoned their resident status, is imputed to the accompanying child).

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