BIA: Exceptions Must Apply to Consider Returning Lawful Permanent Residents as Seeking Admission to the U.S.

By: Sarah Flinn

The Board of Immigration Appeals recently held that a returning lawful permanent resident may not be regarded as seeking admission to the United States unless one of the exceptions listed in INA § 101(a)(13)(C) applies. Matter of Pena, 26 I&N Dec. 613, 618 (BIA June 16, 2015).

The main issue faced by the Board in Matter of Pena is whether Mr. Pena, who was granted lawful permanent resident status on June 5, 2000, could be charged under INA § 212(a) as an arriving alien seeking admission to the U.S. despite the fact that none of the exceptions in § 101(a)(13)(C) applied to him. Id. at 614-15. INA § 101(a)(13)(C) specifically states that an immigrant who has been granted lawful permanent residence shall not be considered as seeking admission to the U.S. when returning from abroad unless one of the six exceptions listed in the statute apply, when the returning permanent resident

“(i) has abandoned or relinquished [legal permanent resident] status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under the Act and extradition proceedings, (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.”

INA § 101(a)(13)(C). None of the six exceptions apply to Mr. Pena, however, because the immigration judge concluded that Mr. Pena never even satisfied the basic premise of being a lawful permanent resident. Matter of Pena, 26 I&N Dec. at 614.

Mr. Pena is a native and citizen of the Dominican Republic married to a U.S. citizen who filed a visa petition on his behalf. Id. at 613. That petition was approved on September 9, 1996 and Mr. Pena subsequently filed an application for adjustment of status on December 1, 1999. Id. In an interview as part of his application for adjustment of status, Mr. Pena was informed that the Government’s records showed that Mr. Pena had been charged with passport fraud by the Department of State passport office on December 28, 1998. Id. Mr. Pena provided the requested documentation regarding the final disposition of the charges and his application for adjustment of status to lawful permanent resident was granted on June 5, 2000. Id.

Mr. Pena sought to reenter the United States after a trip abroad on May 24, 2010 at which point he gave a sworn statement to immigration officials regarding whether he had ever been arrested. Id. at 614. Mr. Pena told the officials that he had been arrested in 1998 for applying for a U.S. passport with the birth certificate and Social Security card of another person. Id. When asked why he did not report the arrest on his application for adjustment of status, Mr. Pena replied that he did not realize the experience at the Passport Office constituted an arrest. Id. Mr. Pena reported that after he found out he was being investigated, he had voluntarily presented himself at the passport office where he was fingerprinted and released. Id. Mr. Pena also clarified that he had never been charged or convicted of passport fraud or any other offense. Id.

Despite his explanation, the Department of Homeland Security (DHS) issued a notice to appear and charged Mr. Pena as inadmissible based on his alleged fraud and prior ineligibility for adjustment of status based on that fraud. Id. The immigration judge at Mr. Pena’s hearing concluded that his permanent resident status was unlawfully obtained which meant that he could be considered an “arriving alien” and charged as inadmissible under INA § 212(a). Id. According to the immigration judge, applying Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), Mr. Pena never received permanent resident status because his false claim of having never been arrested made him ineligible for adjustment of status at the time that he applied. Id.

The Board disagrees. It concludes that Mr. Pena is not an arriving alien by relying on a plain language reading of the statute along with supporting case law known as the “Fleuti doctrine,” and the long-standing constitutional right of due process that is owed to lawful permanent residents. Id. at 616-18. According to the Board, the plain language of INA § 101(a)(13)(C) specifies that an immigrant with a colorable claim to lawful permanent resident status should not be treated as seeking admission unless he or she falls under one of the statutory exceptions listed. Id. at 616.

Additionally, the “Fleuti doctrine,” which predated INA § 101(a)(13)(C), states that a new entry did not occur when a lawful permanent resident’s trip outside the United States was “innocent, casual, and brief.” Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963). The Board relies on the interpretation of the “Fleuti doctrine” in Matter of Rangel, 15 I&N Dec. 789, 791-92 (BIA 1976), in which it was held that the correct forum to adjudicate the lawfulness of an original admission is a deportation proceeding, not an exclusion proceeding. The Board analogizes Mr. Pena’s case to that in Matter of Rangel and holds that the proper forum for the determination of his original application for adjustment of status is a deportation proceeding and not an exclusion proceeding. Matter of Pena, 26 I&N Dec. at 617. Furthermore, the Board emphasizes that the decision in Matter of Rangel guarantees the constitutional right of due process that is owed to lawful permanent residents. Id. at 617 (citing Landon v. Plasencia, 459 U.S. 21, 30-32 (1982)).

The Board concludes that Mr. Pena is a lawful permanent resident who does not fall under any of the exceptions of INA § 101(a)(13)(C) and therefore cannot be considered an arriving alien. Id. at 620. Because he was not an arriving alien he should not have been charged by DHS under INA § 212(a) and the Board sustains Mr. Pena’s appeal. Id. However, the Board remands Mr. Pena’s case in order to give DHS the opportunity to properly charge him under INA § 237(a). Id. This will also allow the immigration judge to determine whether Mr. Pena obtained his permanent resident status lawfully and, if necessary, permit Mr. Pena to apply for any relief from removal for which he qualifies. Id.