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.