I was in Mexico recently, on the coast south of the border, and my wife and I did what we always do on a trip: we went looking for restaurants we can’t get near where we live, outside Billings, Montana. One night it was an Italian place. The food and the service were both very good, and the owner, who had been attentive all evening, stopped to talk as we were leaving.
Thirty years of immigration practice has made me a decent conversationalist, so it did not take long before he was telling me his story. He owned the restaurant. He was Mexican; his wife was a U.S. citizen. And then, almost in passing, he mentioned that he had been removed from the United States several times, and that they had recently hired a law firm in another state to help them get a “pardon.”
That is the moment my mind started working — and, I will admit, working a little too fast. I had a glass of wine in me, I was thirty years into knowing this area cold, and I did what experienced people do: I diagnosed on the spot. This is a story about that diagnosis, why it was wrong, why it took me until the next morning to see how wrong, and the rule I apparently have to relearn every few years. The rule is simple to say and hard to live by: before an immigration lawyer can plan, the lawyer has to know. And “know” does not mean “listen to the client.”
The word that doesn’t exist
Start with the word “pardon,” because it is where the whole problem hides. There is no such thing as a pardon in this corner of immigration law. It is a lay word, and the client had filled it with meaning that may or may not match reality. My job — anyone’s job — is to figure out which real remedy that word is standing in for.
There are really only two candidates, and they do different things. One is permission to reapply for admission, filed on Form I-212 — the government’s consent to let a person who has been removed come back before the bar on their return has run its course. The other is the 212(d)(3) waiver, a broad discretionary waiver that can forgive most grounds of inadmissibility — but only for someone seeking temporary, nonimmigrant admission. Which one applies, or whether both do, depends entirely on facts I did not have at that table. That did not stop me from picking one.
My first mistake, over a glass of wine
My instinct went straight to the 212(d)(3) waiver. I was already several moves ahead in my head: this man is going to need to be admitted to the United States, and admission does not happen without a visa or a border crossing card, and none of that happens while he is inadmissible, so the real action is the waiver of inadmissibility, and the I-212 “pardon” his lawyers were chasing was beside the point. I was, I’m afraid, a little insistent about it.
Here is what was actually going on. Thirty years of pattern recognition let me match his story to a familiar shape almost instantly, and the speed felt like expertise. It usually does. That is exactly what makes it dangerous. The faster you can produce a confident answer, the less you notice that you are answering a question the facts have not yet earned. Add a relaxed dinner, a glass of wine, and a client telling the story with confidence of his own, and you have the precise conditions under which a good lawyer commits to a theory too early. Competence is not a defense against this. It is the accelerant.
The second thought: he needs permission to reapply
It hit me the next morning, without the wine. If this man has been deported, ever, he is going to need permission to reapply regardless of anything else. You cannot waiver your way around the fact of a prior removal; the removal itself creates a bar on returning, and the I-212 is the thing that addresses that bar. So the other firm’s “pardon” was not beside the point at all. It might be exactly right. He may well need the I-212 and a 212(d)(3) waiver — they solve different problems and are not mutually exclusive.
For a plain map of which form answers which recorded ground, and when two filings travel together, see how the immigration waivers fit together.
How long that bar lasts depends on how he was removed. Under the statute governing inadmissibility after removal, a person removed as an arriving alien faces a five-year bar; a person removed after being in the interior faces ten years; a second or subsequent removal pushes it to twenty; and an aggravated felony conviction makes it permanent. “Removed several times,” which is what he told me, is not a detail. It is potentially the difference between a ten-year bar and a twenty-year one — and, as I will explain, possibly something far worse than either.
So by breakfast I had already been wrong twice: wrong to wave off the I-212, and wrong to think one remedy would answer the whole question. And I still did not have the facts.
The technical layer: reinstatement and the permanent bar
The next few paragraphs go into the statutory machinery — reinstatement of removal and the permanent bar. If you just want the practical takeaway, skip ahead to “What a careful lawyer does first.”
Here is the part that should worry anyone advising this man, and the reason the word “pardon” is not just imprecise but potentially misleading.
He said he was removed several times. You do not get removed several times by staying in Mexico. Each additional removal implies that he came back in between — and how he came back is everything.
Reinstatement of removal
If a person who has already been removed reenters the country illegally, the government does not have to start over with a fresh case in front of an immigration judge. Under reinstatement of removal, the old removal order is simply revived from its original date. There is no new hearing, and — this is the hard part — the person “is not eligible and may not apply for any relief.” An officer needs only to confirm three things: that a prior order exists, that the person is the same person, and that they reentered unlawfully. A client who has been “removed several times” may be one encounter away from a reinstated order that forecloses the very relief his lawyers are preparing.
The permanent bar
Worse, that same pattern — unlawful presence followed by an illegal reentry after a removal — is what triggers the permanent bar under INA 212(a)(9)(C). Unlike the ordinary five- or ten-year bars, this one does not run while the person waits. The only way through it is to remain physically outside the United States for at least ten years and then ask for permission to reapply. The Board of Immigration Appeals held in Matter of Torres-Garcia that you cannot shortcut this — an I-212 approval obtained before the ten years are up does not cure the bar, and it will not be granted early. It is the same bar that stops even parole in place from delivering a green card to someone who otherwise qualifies for one.
Sit with what that means for the dinner conversation. If this man is subject to the permanent bar, then an I-212 filed today is not merely the wrong first step — it is a filing that cannot succeed, because the ten-year clock has not run. And a 212(d)(3) waiver, while it can get a nonimmigrant temporarily across the border, does nothing to deliver the green card his U.S.-citizen wife would presumably want to petition for. You could do a great deal of careful, expensive work and still be preparing a remedy for the wrong bar. Not because anyone was careless — but because the plan was built on facts nobody had verified.
That is the whole case for what comes next.
What a careful lawyer does first: find out what actually happened
I spent a career before the law as a chemist, and the reflex that training leaves you with is this: a hypothesis is not a result. You do not report what you think is in the flask. You run the assay. In an immigration case with any removal history, the assay is a set of Freedom of Information Act requests, and it comes before you file anything.
I would file two, and I would file them deliberately different. One request by name, and one keyed to fingerprints. The reason for two is the reason this whole article exists: the client’s account is not reliable, and neither, by itself, is any single government database.
A name-based request will pull what the agency has filed under the identity the client gave you. A fingerprint-based search — the FBI Identity History Summary, the old “rap sheet” — matches on the one thing a person cannot swap out or forget: their own hands. It surfaces encounters, arrests, and aliases the client never mentioned, sometimes because he did not think they mattered and sometimes because he genuinely does not remember them. In a “removed several times” case, the fingerprint history is often the only place the true sequence of events survives intact.
And because no single agency holds the whole picture, the requests fan out across the government that produced the history:
- USCIS holds the A-file, the master immigration file — petitions, prior applications, notices.
- Customs and Border Protection holds the border-crossing and inspection record — entries, exits, encounters at the port, expedited removals.
- ICE holds the detention and removal records.
- The immigration court (EOIR) holds the record of proceedings — the charging documents, the orders, the appeals.
Each of these can be incomplete or inconsistent with the others, which is not a bug in the method — it is the point. A removal that shows up in a court file but not the A-file, or a border turnaround the client “forgot,” is exactly the kind of fact that decides whether you are dealing with a ten-year bar, a twenty-year bar, or the permanent bar. You find it by cross-checking, not by asking.
Which bar are you actually facing?
The reason the sequencing matters is that a handful of facts — most of which the client cannot reliably supply — sort a case into completely different worlds. Was the last event a removal, a voluntary return, or an expedited removal at the port? Did he reenter unlawfully afterward? How much unlawful presence did he accrue? The answers route the case down separate paths with separate remedies and separate timelines, and the paths do not converge. That is why the FOIA results, not the client’s summary, have to come first: you cannot pick the path until you know which fork you are standing at.
Why clients can’t tell you — and why that isn’t their fault
Here is the truth I keep having to relearn, and it is not a knock on anyone: clients are poor reporters of their own immigration history. Not because they are dishonest, but because the events that matter to the law do not feel distinct as they are lived.
Consider how a border event is experienced. A person is stopped, held for some hours, and sent back. To him, that is one thing: he “got sent back.” But to the law, a voluntary return, an expedited removal, and a removal after proceedings are three completely different events with three completely different consequences — and he has no way of knowing which one happened to him, because nobody at the time explained it in those terms, and it may have happened years ago in a language that was not his first. Layer on the ordinary erosion of memory, the stress of the events themselves, and the simple fact that most people do not think in statutory categories, and you get an account that is offered in complete good faith and is still not something you can build a filing on.
This is why “know your client” cannot mean “believe your client.” It has to mean verify, through the record, what actually happened — and then have the harder conversation, the one grounded in the FOIA results rather than the story over dinner.
On parallel processing: prepare in parallel, but don’t file blind
I am a believer in parallel processing. I can imagine a defense of the other firm along these lines: the client related something that plainly looked like a deportation, so they opened the I-212 to save time and ran the FOIA requests alongside it. Get everything moving at once.
I understand the impulse, and I do not fully accept it. There is a clean line here worth drawing. Running your investigation in parallel with your case preparation — intake, drafting, gathering the qualifying-relative evidence, counseling the client on cost and risk — is good practice. Running your investigation in parallel with an actual filing is not, when the content of that filing depends on facts you do not yet have. An I-212 asks you to identify the removals you are seeking permission to overcome. File it before the FOIA results are in and you are attesting to a history you are guessing at — and, if the permanent bar is in play, filing something that cannot be granted at all. Prepare in parallel. Do not file in the dark.
Could the other firm be right? I honestly can’t say
And now the part that keeps me honest. I have spent this article second-guessing a firm I know almost nothing about — based entirely on what a restaurant owner told me on his way past our table.
Do you see the problem? To conclude that the other firm started in the wrong place, I would have to trust the client’s account of what the L.A. firm is doing. That is the exact thing this whole article says you cannot rely on. Maybe they ran the FOIA requests weeks ago and the I-212 is a perfectly informed next step. Maybe “pardon” was the client’s word for something they never called that. I don’t know what that firm is doing, and neither does anyone else working from a secondhand summary — which is the point, turned back on myself. The lesson is not “that firm got it wrong.” The lesson is that none of us — not the other firm, not the client, and certainly not me with a glass of wine at dinner — can plan a case we have not yet verified.
The rule, one more time
Thirty years in, I jumped to a conclusion at a dinner table, and I was wrong before I finished the entrée. The correction did not come from knowing more law. It came from remembering the order of operations. In a case with any removal history, the first move is not the I-212 and it is not the waiver. It is finding out what actually happened — by fingerprint and by name, across every agency that touched the file — and only then deciding what to file. To plan, you have to know. And knowing, in this work, is something you build from the record, not something you are told.
If you or a family member has been removed from the United States and is trying to find a lawful way back, that verification is where a competent case begins. We handle removal and post-removal matters for clients across Montana, North Dakota, Wyoming, and the Rocky Mountain West, and we are glad to talk through where yours actually stands — after we have looked. Start by requesting your immigration court records so you know exactly what kind of removal order is in your file.
