Skip to content

In Matter of Alcibiades Antonio Pena, the Board of Immigration Appeals held that a permanent resident returning to the United States may not be charged with being an inadmissible arriving alien unless one of the exceptions at INA 101(a)(13)(C) apply--even if the government alleges the permanent resident was not eligible for his status at the time he received it.

Customs and Border Protection treated Alcibiades Antonio Pena, a foreign national admitted to lawful permanent resident status, as an arriving alien and charged him with inadmissibility for misrepresentation, false claim of U.S. citizenship, and no valid admission document. It charged him with these grounds based on an investigation by the U.S. Department of State that occurred prior to his receipt of permanent resident status (and that was known by USCIS when it granted him permanent resident status). Essentially, CBP alleged that Mr. Pena was inadmissible because he was not eligible to obtain permanent resident status--it disagreed with USCIS's decision to grant the application. (Unfortunately, CBP far too often attempts to interpret the documents in a resident's A-file to see if USCIS made a mistake. It can be hard to defend against these post hoc reviews if USCIS does not fully document the basis for the decision in the A-file.)

The Board held that charging Mr. Pena with inadmissibility was not proper. A foreign national may be charged with a ground of inadmissibility only if one of the 101(a)(13)(C) exceptions apply, which include permanent residents who: have abandoned or relinquished that status, been absent from the U.S. for a continuous period of more than 180 days, engaged in illegal activity after departing the U.S., departed while under removal or extradition proceedings, committed an inadmissible criminal offense, or who is attempting to enter (or has entered) without inspection and admission. None of these exceptions apply to Mr. Pena's scenario. Therefore, the government instead should have admitted him to the U.S. It could, however, then charge him with deportability for not being admissible at the time of admission to lawful permanent resident status.

Note that the difference between a charge of inadmissibility and a charge of deportability is important, since an arriving alien charged with inadmissibility is not eligible to obtain an immigration judge's review of a bond decision. A permanent resident treated as an arriving alien also is not eligible to apply for readjustment of status before the immigration judge, and instead would have to make that application to USCIS without the benefit of appellate review. There also is the open question, so far as the Board is concerned, as to which party bears the burden of proof if the returning resident is (properly) charged with inadmissibility. Must the government prove inadmissibility or must the returning resident prove he is not inadmissible? On the other hand, for a charge of deportability (as the Board held applies to Mr. Pena) the government always bears the burden of proof. The determination of who carries the burden of proof often determines who will win the case, so Pena is a very important decision.

DOWNLOAD (PDF, 190KB)

The Board of Immigration Appeals finally capitulated in this decision to what it recognized was the "overwhelming circuit court authority" that an aggravated felony conviction does not bar a waiver of inadmissibility under 212(h) unless the applicant has "previously been admitted to the United States as an alien lawfully admitted for permanent residence."  In other words, a 212(h) waiver of criminal inadmissibility is available if a permanent resident adjusted to that status in the U.S., but not if she entered the U.S. on an immigrant visa.  Nine circuit courts had found that conclusion compelled by the plain language of the statute, so the Board gave up the fight and withdrew from its decisions in Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012) and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010).

Admittedly, though, one can see why the Board sought to have the aggravated felony bar apply to permanent residents regardless of whether they adjusted status or entered on an immigrant visa: There seems to be no rational basis for distinguishing between the two groups.  Without a rational basis for the distinction, denying 212(h) to permanent residents who entered the U.S. on immigrant visas would violate due process.  I am sure that will be the next argument for intrepid immigration lawyers like myself--the 212(h) aggravated felony bar should not apply to immigrant visa entrants either!

DOWNLOAD (PDF, 145KB)

510-835-1115