LPR Returning to U.S. Cannot Be Regarded as Seeking Admission and May Not Be Charged with Inadmissibility

Distinguishing Koloamatangi, the BIA holds that LPR returning to U.S. is not seeking an admission and may not be charged with inadmissibility under 8 USCA § 1182(a).

In Matter of Pena, 26 I. & N. Dec. 613 (B.I.A. June 16, 2015), the Board of Immigration Appeals (BIA or Board ) held that an alien returning to the U.S. who has been granted lawful permanent resident (LPR) status cannot be regarded as seeking an admission and may not be charged with inadmissibility under INA § 212(a) [8 USCA § 1182(a)] (2012), “Classes of aliens ineligible for visas or admission,” if he or she does not fall within any of the exceptions in INA § 101(a)(13)(C) [8 USCA § 1101(a)(13)(C)] (2012):

(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien–

(i) has abandoned or relinquished that 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 this chapter and extradition proceedings,

(v) has committed an offense identified in section 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title, 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.

Board Members Patricia Cole (who wrote the majority opinion) and Lisa Wendtland distinguished Matter of Koloamatangi, 23 I. & N. Dec. 548 (B.I.A. 2003), in which the Board held that an alien who acquired permanent resident status through fraud or misrepresentation has never been “lawfully admitted for permanent residence” and is therefore ineligible for cancellation of removal under INA § 240A(a) [8 USCA § 1229b(a)] (2000).

The respondent is a native and citizen of the Dominican Republic. He married a U.S. citizen who filed a visa petition on his behalf. Based on the September 1996 approval of the visa petition, the respondent filed an application for adjustment of status in December 1999. He indicated on his application that he had no prior arrests. However, at an interview in connection with his application, the government notified the respondent that its records showed that he had been charged with passport fraud by the Department of State passport office in December 1998. The respondent was asked to provide documentation regarding the final disposition of these charges, which he did. In June 2000, the respondent’s application for adjustment of status was granted and he was accorded LPR status.

In May 2010, the respondent sought to reenter the U.S. after a trip abroad. He gave a sworn statement in an interview with immigration officials. When asked whether he had ever been arrested, the respondent first replied that he had been arrested in 1998 for applying for a U.S. passport using the birth certificate and Social Security card of another person. When asked why he indicated on his adjustment of status application that he had never been arrested, the respondent said he thought he had not been arrested because he had voluntarily appeared at the passport office after learning from his wife that he was being investigated. He stated that he was fingerprinted at the passport office and released. He further explained that he was neither charged with nor convicted of passport fraud or any other offense.

After the respondent’s interview in May 2010, the Department of Homeland Security (DHS or Department) issued a notice to appear charging the respondent as inadmissible based on his alleged fraud and prior ineligibility for adjustment of status. At a hearing before an immigration judge (IJ), the respondent denied the charges. Applying Matter of Koloamatangi, the IJ determined that the respondent had never been accorded LPR status because he was ineligible for adjustment of status at the time he applied. Specifically, the IJ found that the respondent made a false claim to U.S. citizenship by knowingly purchasing an illegally obtained birth certificate and Social Security card and that he did not disclose his arrest on his adjustment of status application. Based on these findings, the IJ concluded that the respondent’s permanent resident status was unlawfully obtained and that he could therefore be deemed an “arriving alien” and charged under INA § 212(a). He then found the respondent inadmissible as charged and ineligible for relief from removal, and ordered him removed from the U.S.

Board Member Cole outlined the issue as follows:

The threshold issue in this case is whether the respondent, who was granted lawful permanent resident status, can be charged in removal proceedings under section 212(a) of the Act as an arriving alien seeking admission, since he does not fall within any of the exceptions listed in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012), which allow for an alien lawfully admitted for permanent residence to be regarded as seeking admission to the United States.

We must resolve the question whether a returning lawful permanent resident can be treated as an arriving alien based on an allegation that he acquired his status unlawfully. We conclude that an alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking admission and may not be charged with inadmissibility under section 212(a) of the Act if he does not fall within any of the exceptions in section 101(a)(13)(C) of the Act.

Board Member Cole first examined the language of the statute to determine whether Congress expressed a plain and unambiguous intent that aliens in the respondent’s circumstances should be considered applicants for admission under INA § 101(a)(13)(C). She determined that the plain language of INA § 101(a)(13)(C) indicates that an alien who does not fall within one of the statutory exceptions and who presents a colorable claim to LPR status is not to be treated as seeking an admission and should not be regarded as an arriving alien. She found further support for this position in BIA case law interpreting the Fleuti doctrine, which predated the enactment of INA § 101(a)(13)(C) by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in 1996. In Matter of Rangel, 15 I. & N. Dec. 789 (B.I.A. 1976), the Board held that (1) the rationale expressed by the Supreme Court in Fleuti regarding the effect of a brief departure from the U.S. on resident alien status applies in the case of a resident alien whose original entry was unlawful, (2) the applicant did not make an “entry” within the meaning of INA § 101(a)(13) when she attempted reentry into the U.S., and (3) the proper forum in which to adjudicate the lawfulness of her original admission therefore is in a deportation proceeding (rather than an exclusion proceeding), with the applicant entitled to the attendant safeguards thereof. Board Member Cole said:

The question addressed in Matter of Rangel is analogous to that now before us, namely, whether a returning permanent resident who is suspected of unlawfully acquiring his or her status should be placed in exclusion proceedings (now charged with inadmissibility) or deportation proceedings (now charged with deportability). Our decision in Rangel comported with the Supreme Court’s recognition of the constitutional right of due process that is owed to lawful permanent residents.

Prior to the 1996 enactment of section 101(a)(13)(C) of the Act, the proper forum for determining whether a lawful permanent resident had unlawfully obtained his status would have been a deportation proceeding, rather than an exclusion proceeding, unless he was making an “entry.” Applying the same rationale to the current law, an alien in the respondent’s circumstances should be charged under section 237(a) of the Act, rather than section 212(a), unless he can be regarded as seeking an admission under section 101(a)(13)(C).

However, the DHS is not precluded from charging an alien such as the respondent under section 237(a) of the Act. The grounds of deportability contain a provision that is clearly applicable to an alien who allegedly obtained his lawful permanent resident status through fraud or misrepresentations. See section 237(a)(1)(A) of the Act (providing that “[a]ny alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable”); see also section 212(a)(6)(C) of the Act.

We conclude that the respondent, a lawful permanent resident who does not fall within one of the exceptions in section 101(a)(13)(C) of the Act, cannot be regarded as an arriving alien. Therefore, the charges brought by the DHS under section 212(a) of the Act should not have been sustained. Accordingly, we will sustain the respondent’s appeal and remand the record to give the DHS an opportunity to properly charge him under section 237(a) of the Act. If necessary, the Immigration Judge may then determine whether the respondent lawfully obtained his permanent resident status and allow him to apply for any relief from removal for which he may be eligible.

Board Member Roger Pauley dissented, based on his opinion that the majority improperly limited the holding in Koloamatangi. He opined:

Fortunately, not much damage will result from the majority’s erroneous decision. As the majority opinion observes, the Department of Homeland Security (“DHS”) may charge a returning lawful permanent resident who it believes has wrongly obtained his or her status as having been inadmissible at the time of adjustment of status. See section 237(a)(1)(A) of the Act. If such charge is upheld, Matter of Koloamatangi will apply to render the alien ineligible for relief to the extent relief is sought based on lawful permanent resident status. However, the majority decision does have a modicum of practical import because an alien charged under section 237(a) (as opposed to section 212(a)) may seek a waiver of deportability under section 237(a)(1)(H) of the Act, if he or she is subject to removal as having been inadmissible at the time of admission because of fraud. That section contains more generous provisions allowing for such a waiver than does the comparable provision at section 212(i) of the Act.

To the extent that the majority confers an advantage on the class of lawful permanent residents who wrongly obtained their status–as compared to the class of lawful permanent residents who obtained their status rightfully but are charged as applicants for admission under section 101(a)(13)(C)–I find it an unlikely expression of congressional intent. The former class, which includes the respondent in this case, generally represents a less deserving group inasmuch as they ordinarily will have obtained their status by fraud or other wrongful means.

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In a January 8, 2003, decision, the Board of Immigration Appeals (BIA) determined that an alien who acquires permanent resident status through fraud or misrepresentation has never been “lawfully admitted for permanent residence,” and is therefore ineligible for cancellation of removal under INA § 240A(a). Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003).

      The respondent acquired permanent resident status in 1985 by virtue of a bigamous marriage to a U.S. citizen, which resulted in the birth of a child. His marriage was knowingly bigamous because he was simultaneously married to a Tongan national. The Immigration Judge (IJ) pretermitted the respondent’s application for cancellation of removal under INA § 240A(a), finding that he was not eligible to apply for that form of relief although he was facially and procedurally in lawful permanent resident status for more than the requisite number of years needed to qualify. The IJ ruled that due to the respondent’s acquisition of lawful permanent resident status by fraud, the respondent was never, in a legal sense, an alien lawfully admitted for permanent residence. The respondent filed an appeal with the BIA asserting that his application for relief should be considered.

      The Board agreed with the IJ’s ruling, stating that “this case turns on the meaning of the term ‘lawfully admitted for permanent residence.”’ The Board noted that the definition of the term in INA § 101(a)(20) means, “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” Turning to the definition of the same term in 8 CFR § 1.1(p), the Board pointed out that the regulation repeats verbatim the statutory definition and, pursuant to a 1996 amendment, includes the following final sentence: “[s]uch status terminates upon entry of a final administrative order of exclusion or deportation.”

      The BIA disagreed with the respondent’s argument that he qualified for § 240A(a) cancellation of removal because there was no final administrative order depriving him of permanent resident status. The Board pointed out that long before the final sentence was added to the regulation, its decision in Matter of T-, 14 I&N Dec. 12 (BIA, A.G. 1954), held that an alien who acquires permanent resident status through fraud or misrepresentation has not made a lawful entry upon which to base eligibility for relief. The Board found that Matter of T- was “clearly applicable” to the respondent’s situation, in contrast to the IJ’s reasoning that Matter of T- involved relief under former INA § 212(c), and was therefore “not on point.”

      The Board pointed out that consistent with Matter of T-, the U.S. Courts of Appeals for the Fifth and Ninth Circuits each decided that the term lawfully admitted for permanent residence did not apply to aliens who had obtained their permanent resident status by fraud, or had otherwise not been entitled to it. In Matter of Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983), and Monet v. INS, 791 F.2d 752, 753 (9th Cir. 1986), the courts reasoned that the aliens’ proposed *151 interpretation of the term, using the same argument advanced by the respondent, “distorts” the term’s meaning because “‘lawfully’ denotes compliance with substantive legal requirements, not mere procedural regularity,” the BIA said, stressing that “[t]o our knowledge, no federal appellate authority or any subsequent Board precedent has held to the contrary.”

      The Board found the reasoning in Longstaff and Monet sound, and observed that the analysis in those cases survives the 1996 amendments to 8 CFR § 1.1(p). The BIA observed that when Congress abolished § 212(c) relief in 1996, and substituted similar requirements for the comparable relief of § 240A(a) cancellation of removal, it did not intend for “an alien who committed fraud in order to obtain such status, and whose fraud was not discovered until more than 5 years had passed, [to] rely on having obtained such status ‘lawfully’ to claim eligibility for relief.” To reach such a conclusion would be “illogical,” the Board said, stressing that nothing in the regulation’s final sentence changes its analysis. The BIA pointed out that the explanatory materials that accompanied the 1996 amendment to the regulation make clear that the final sentence was to codify its decision in Matter of Lok, 18 I&N Dec. 101 (BIA 1981), wherein it held that “an alien’s permanent resident status, which had been lawfully obtained, terminated with the entry of a final administrative order of deportation.” The Board noted too that the regulation was intended to overcome certain decisions of the Second and Ninth Circuits, which had held, in the context of a motion to reopen, that lawful permanent resident status did not terminate until an alien physically departed the U.S. “There is no indication that the addition of the final sentence was intended to undermine the long-standing decisions holding that an alien was not ‘lawfully’ admitted for permanent resident status if, at the time such status was accorded, he or she was not entitled to it,” the Board stated.

      The Board distinguished its decision in Matter of Ayala, 22 I&N Dec. 398 (BIA 1998), where it held that “the respondent, who does not yet have a final order of deportation, still enjoys the status of an alien who has been ‘lawfully admitted for permanent residence,”’ by pointing out that the statement was made in a factual setting similar to that in Matter of Lok, “where it was not alleged that the alien had acquired his permanent resident status unlawfully,” but had “subsequently been convicted of a federal offense that might cause him to lose his status.” (Footnote omitted.)

      The Board found the instant case different because the respondent had obtained his permanent resident status fraudulently, and was therefore never “lawfully” accorded the status required to establish eligibility for § 240A(a) cancellation of removal. The BIA found the regulatory sentence regarding when an alien’s lawful permanent resident status ends to be “inapposite to the issue at hand” because the respondent never lawfully acquired that status although he reaped its benefits until his fraud was discovered. The Board continued:

       [c]onsistent with Matter of T-, supra, and the Fifth and Ninth Circuit decisions cited above, we hold that the correct interpretation of the term “lawfully admitted for permanent residence” is that an alien is deemed, ab initio, never to have obtained lawful permanent resident status once his original ineligibility therefor is determined in proceedings. We perceive no basis for concluding that the Tenth Circuit, which appears not to have confronted this question, would reach a different outcome. [Footnote omitted. The BIA concluded that the respondent was ineligible for cancellation of removal under INA § 240A(a) because he was never lawfully admitted for permanent residence, and dismissed his appeal, which asserted his eligibility for that relief. The Board remanded the record to the IJ for further proceedings because the respondent has a U.S. citizen child and appears to be eligible to apply for a waiver under INA § 237(a)(1)(H). The Board also noted that despite doubts expressed by the IJ about the respondent’s good moral character, he might also be eligible for § 240A(b) cancellation of removal, and stated that if the IJ finds the respondent eligible for § 240A(b) cancellation, he might reconsider his denial of voluntary departure.

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