Reentering the Golden Door: Waiving Good-Bye to Exclusion Grounds for Permanent Resident Aliens

Under the exclusion provisions of the Immigration and Nationality Act (INA), an alien admitted to the United States for permanent residence can be prohibited from reentering the United States after a trip out of the country. Because exclusion grounds differ from deportation grounds, permanent resident aliens who are not deportable could leave the country and find themselves excluded at the border upon return. The INA provides relief in such cases by allowing permanent resident aliens who have lived in the United States for over seven years to apply for a discretionary waiver of exclusion grounds under INA § 212(c). In Francis v. INS, the Fifth Circuit expanded the scope of this waiver and held that the equal protection clause requires that INA § 212(c) be available in deportation proceedings as a waiver of deportation grounds. This expansion conflicts with both the plain language of the statute and Congressional intent. Nonetheless, § 212(c) has become an essential form of relief for permanent resident aliens with significant ties to the United States. This Comment examines the confusion caused by the extension of § 212(c) and proposes amendments to the INA redefining entry under § 101(a)(13), eliminating § 212(c), and creating a new waiver of deportation under § 241