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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.

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The Ninth Circuit assumed without deciding that a grant of temporary resident status pursuant to the legalization provision at INA 245A amounted to an "admission." It held, however, that a termination of the temporary resident status (in this case for convictions) returns an alien to the unlawful status held before the grant of temporary resident status. 8 C.F.R. § 245a.2(u)(4). In this case, Hernandez-Arias previously held the status of an alien present without admission or parole. The court held the termination thus returned him to an unadmitted status, which made him vulnerable to removal for being present without admission or parole.

The court rejected Hernandez-Arias' argument that this return to an unadmitted status would result in a "rescission," which the regulations say is not required for termination of status and which did not occur in his case. The court distinguished a rescission from a termination. Using divorce and annulment as a comparison, it held rescission would result in him never having had temporary resident status and deprive him of any benefits of having had that status. Termination simply ends the status and returns him to the status he had before.

As an alien not admitted or paroled (and apparently not eligible for 245(i) adjustment), the court held Hernandez-Arias was not eligible for a 212(h) waiver of inadmissibility for his criminal convictions. It held he therefore was not prejudiced by the failure of the immigration judge in the removal proceedings to advise him of potential eligibility for 212(h). It therefore upheld his conviction in this case for illegal reentry after removal.

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The Board of Immigration Appeals held that a conviction for 18 U.S.C. § 1001(a)(2) (2002), making a materially false, fictitious, or fraudulent statement or representation to a government official (here to obtain a U.S. passport) is a crime involving moral turpitude (CIMT). It distinguished earlier decisions that found this was not necessarily the case because the earlier version of the statute did not always require materiality. The current version does. The Board therefore upheld the finding that the noncitizen was ineligible for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA) due to having a felony CIMT.

The Board also reaffirmed that entry on a false claim to U.S. citizenship is not an inspection and admission for purposes of the INA and denied voluntary departure in the exercise of discretion.

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The Board first held that an immigration judge must first determine whether to terminate an asylee's asylum status before adjudicating charges of inadmissibility or deportability. The Board remanded because the immigration judge did not do that here. Before remanding, however, the Board addressed whether he was properly charged with inadmissibility and issues regarding V-X-'s guilty plea to charges that he delivered marijuana, conspired to deliver marijuana, and knowingly kept a vehicle for the purpose of keeping or selling controlled substances in violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of the Michigan Compiled Laws, respectively.

The Board rejected V-X-'s argument that as a person granted asylum he is not subject to charges of inadmissibility under section 212 of the Immigration and Nationality Act (INA), but rather must be charged with deportability under section 237. He had entered the U.S. on parole and obtained asylum in the U.S. The Board held that neither parole nor grant of asylum amount to an admission to the United States, which it has held is limited to inspection and admission at a port of entry or adjustment to permanent resident status. Since he was not "admitted to" the U.S., the Board held the grounds of inadmissibility applied.

The Board next rejected V-X-'s argument that being designated a "youthful trainee" under section 762.11 of the Michigan Compiled Laws was not a conviction and thus did not make him inadmissible for conviction of a crime involving moral turpitude or a controlled substance offense. It held the youthful trainee designation did not correspond to a civil determination of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), so the guilty plea amounted to a conviction under the INA. Unfortunately for a published decision like this one, though, the Board did not explain why the youthful trainee designation did not correspond to the FJDA. It just cited Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th Cir. 2005). The explanation would not have taken to long; it is simply this: a youthful trainee has a conviction until it is vacated after a period of good behavior and rehabilitation, while a juvenile delinquent under the FJDA never has a criminal conviction because it is a civil status finding.

The Board also noted the potential applicability of the recent Supreme Court decision in Moncrieffe to the immigration judge's finding that V-X- was ineligible for asylum or withholding of removal for conviction of an aggravated felony and particularly serious crime. Specifically, V-X-'s conviction would not be an aggravated felony if the statutes he was convicted of violating potentially could involve gratuitous distribution of a small amount of marijuana.

Interestingly, the Board also noted that Moncrieffe should be considered in assessing whether V-X- would be eligible for adjustment of status as an asylee under INA section 209(b) with a section 209(c) waiver of inadmissibility. An asylee is not eligible to adjust if he is inadmissible under section 212(a)(2)(C) for reason to believe he has been involved in drug trafficking, which does not require a conviction. Thus, the Board is indicating that gratuitous distribution of a small amount of marijuana may not trigger 212(a)(2)(C) inadmissibility.

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The respondent in this case was a long-time LPR indicted by a federal grand jury on charges of bulk cash smuggling.  Post-indictment but pre-conviction, he returned to the United States from a trip abroad and was paroled into the country for prosecution.  He was convicted the following year.

DHS then initiated removal proceedings, charging him with inadmissibility under section 212(a)(2)(A)(i)(I), as an alien convicted of a crime involving moral turpitude.  The IJ terminated the proceedings, reasoning that the DHS had not met its burden of establishing that the respondent was seeking admission because, at the time he sought entry into the US, he had not yet been convicted of the crime.

The Board reversed.  Under section 101(a)(13)(C) of the Act, an LPR shall only be considered an applicant for admission if he falls within one of six enumerated categories, including aliens who have committed an offense under section 212(a)(2).  The Board held that because the respondent in this case was paroled into the country for prosecution, DHS could rely on his subsequent conviction to sustain its burden of proving that he was properly charged as an arriving alien.  In reaching this conclusion the Board reasoned that an application for admission is a continuing application and admissibility is determined at the time the application is considered before the IJ, not at the time the alien first presents himself for inspection.  Thus, following this case, when DHS is confronted with a returning LPR who is suspected of criminal activity but has not yet been convicted, it may parole him into the country for purposes of prosecution and rely on the results of the prosecution for purposes of applying section 101(a)(13)(C) in future removal proceedings.

Board member Patricia Cole dissented from the opinion, reasoning that the plain language of section 101(a)(13)(C) demands that the determination of whether a returning LPR is seeking admission must be made at the time he presents himself at a port of entry based on the information then available to DHS.

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The Ninth Circuit held that the right to counsel provided by 8 C.F.R. § 292.5(b) does not apply to "applicants for admission" at primary or secondary inspection and held that a lawful permanent resident may be treated as an applicant for admission based on the inspecting officer's conclusions.

Generally, returning lawful permanent residents are not considered to be applicants for admission unless an exception at 8 U.S.C. § 1101(a)(13)(C) applies. Here, the exception was that the LPR was found to have engaged in illegal activity after departure from the U.S.: he allegedly attempted to smuggle his niece into the country upon return. The officers detained him 28 hours and interrogated him, obtaining a sworn statement admitting to the smuggling. At his removal hearing he sought to suppress the statement. He argued he had a right to counsel because he could not be considered an arriving alien until he received a final administrative determination of that issue by the immigration judge and Board of Immigration Appeals.

The Ninth Circuit disagreed, finding that the respondent's argument was "not consistent with the language of the statute or with logic." Really? The officer usually has nothing more than suspicion until the officer interrogates the returning resident--here after more than 24 hours in detention with no access to counsel. Thus, it is the denial of counsel that permits the government to establish that a returning resident is an arriving alien--not vice versa.

As an interesting corollary, I think most CBP officers would be surprised to learn that returning residents have a right to counsel during primary and secondary inspection IF they cannot be considered arriving aliens under § 1101(a)(13)(C). In other words, I don't think an LPR who is potentially deportable for a conviction but not inadmissible for it (e.g., a firearms offense) will be given an opportunity to have his attorney present at the airport. We'll see if that changes with this decision.

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The Board held that a lawful permanent resident returning from abroad may be treated as an applicant for admission under 8 U.S.C. § 1101(a)(13)(C)(iii), and thus subject to the grounds of inadmissibility, if DHS proves by clear and convincing evidence that he engaged in illegal activity at the port of entry before admission. In this case, the resident allegedly attempted to bring an undocumented juvenile alien into the U.S. in violation of the law.

The Board first held that "illegal activity" clearly includes criminal activity such as alien smuggling. It suggested the language did have some limits and might not include other illegal, noncriminal activity such as torts, breaches of contract, or noncriminal regulatory violations. The resident had not argued, though, that smuggling would not be "illegal activity."

Instead, the resident argued the statute permits treatment of a returning resident as an applicant for admission only if the illegal activity occurred in a foreign country or on the high seas, since a port of entry is on U.S. soil and the statute says “has engaged in illegal activity after having departed the United States.” The immigration judge had agreed, but the Board did not. It held a noncitizen is not in the U.S. for immigration purposes until after inspection and admission.

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The Supreme Court held that a permanent resident who pled guilty to a crime involving moral turpitude before the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 still benefits from the Supreme Court's 1963 decision in Fleuti, which provides he would not be considered to be "seeking entry" after a innocent, casual, and brief trip abroad. If the resident is not seeking entry, then he is not subject to numerous additional criminal and noncriminal grounds for removal.

IIRAIRA created a new rule that returning residents are considered to be seeking admission upon return from abroad if they have committed an offense that makes them inadmissible. The Supreme Court held that rule is not retroactive because Congress did not explicitly make it retroactive and it creates a new disability (the noncitizen's inability in this case to travel to Greece briefly to visit his ill parents without being subject to removal upon return). It is thus another application of Landgraf v. USI Film Products, 511 U. S. 244, 263 (1994).

Notably, the Supreme Court held that explicit reliance on prior law by the individual is not required to avoid retroactive application. The majority of the Court also rejected the dissent's argument that the noncitizen's own travel after IIRAIRA is what triggered his removal proceedings and he could have avoided those problems by not traveling.

Vartelas is not a big change for those of us in the Ninth Circuit or Fourth Circuit, since they already had found that the new definition of when a permanent resident would be seeking admission was not retroactive for noncitizens who pled guilty before IIRAIRA. Camins v. Gonzales, 500 F. 3d 872 (CA9 2007); Olatunji v. Ashcroft, 387 F. 3d 383 (CA4 2004).

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Definitively answering a long-standing question, the Board held the government bears the burden of proving that a permanent resident returning to the U.S. after travel abroad should be treated as an "applicant for admission." Permanent residents generally are not considered applicants for admission unless one of the exceptions at INA 101(a)(13)(C) applies. If an exception applies, then the permanent resident is subject to additional stricter grounds for removal than would otherwise apply. For example, a single conviction for a crime involving moral turpitude might not make a permanent resident removable unless he is considered an applicant for admission.

The allocation of the burden of proof can be determinative because whether a crime involves moral turpitude often is not clear from the record of conviction. If the noncitizen bore the burden of proof, an inconclusive record of conviction might make him removable. By placing the burden on the government, of clear and convincing evidence no less, Rivens protects permanent residents from loss of their status and removal based on inconclusive evidence.

In a second holding, the Board found that the crime of being an accessory after the fact, 18 U.S.C. § 3, is a crime involving moral turpitude only if the underlying offense involved moral turpitude. The Board found that helping someone after he commits a crime is turpitudinous (base, vile, or depraved) if the crime committed was turpitudinous. This contrasts with the Ninth Circuit's decision in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), overruled on other grounds by United States v. Aguila-Montes de Oca, No. 05-50170, 2011 WL 3506442 (9th Cir. Aug. 11, 2011), although the Board suggested otherwise.

The Board's holding does not stand to reason, though, since an accessory after the fact does not participate in the underlying crime. Rather, being an accessory after the fact is a completely separate crime that should not depend on the nature of the underlying offense.

For example, being an accessory after the fact would include giving your son $100 when you know he is on the run from the police. Does giving your son the money become more or less turpitudinous depending on whether the police are after him for grand theft (a crime of moral turpitude) or possessing an unregistered firearm (not a crime of moral turpitude)? No, in either case the mother is not helping her son commit the crime; she is helping him to avoid standing trial for it. This is a crime and bad parenting, but not vile or depraved.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3731.pdf

The Supreme Court has agreed to address whether IIRAIRA's definition of when a lawful permanent resident is seeking "admission" should be applied to an LPR returning after a brief, innocent, and casual trip abroad who pled guilty to a crime of moral turpitude prior to IIRAIRA.  Vartelas is a Second Circuit case that conflicts with decisions from the Ninth and Fourth Circuits. See Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007); Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004).

View the docket at http://www.supremecourt.gov/qp/10-01211qp.pdf

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