PENA

Cite as 26 I&N Dec. 613 (BIA 2015) Interim Decision #3842

Matter of Alcibiades Antonio PENA, Respondent

Decided June 16, 2015

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien returning to the United States who has been granted lawful permanent resident

status cannot be regarded as seeking an admission and may not be charged with

inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(a) (2012), if he or she does not fall within any of the exceptions in

section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). Matter of

Koloamatangi, 23 I&N Dec. 548 (BIA 2003), distinguished.

FOR RESPONDENT: Michele H. Kane, Esquire, Boston, Massachusetts

BEFORE: Board Panel: COLE and WENDTLAND, Board Members. Dissenting

Opinion: PAULEY, Board Member.

COLE, Board Member:

In a decision dated November 14, 2011, an Immigration Judge found

the respondent inadmissible under sections 212(a)(6)(C)(i), (ii)(I),

and (7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C.

§§ 1182(a)(6)(C)(i), (ii)(I), and (7)(A)(i)(I) (2006), and ordered him

removed from the United States. The respondent has appealed from that

decision. The appeal will be sustained and the record will be remanded to

the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the Dominican Republic. The

record reflects that he was married to a United States citizen who filed a

visa petition on his behalf. Based on the September 9, 1996, approval of

the visa petition, the respondent filed an application for adjustment of status

on December 1, 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 on December 28, 1998. The respondent was asked to provide

documentation regarding the final disposition of these charges, which he

submitted. On June 5, 2000, the respondent’s application for adjustment of

status was granted and he was accorded lawful permanent resident status.

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On May 24, 2010, the respondent sought to reenter the United States

after a trip abroad. At that time 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 United States passport using the birth certificate and Social Security

card of another person. When asked why he indicated that he had never

been arrested on his adjustment of status application, the respondent said he

thought he had not been arrested in relation to the passport application

because he had voluntarily appeared at the passport office after learning

from his wife that he was being investigated.1 He stated that he was

fingerprinted at the 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 on May 24, 2010, the Department of

Homeland Security (“DHS”) 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 the Immigration Judge, the

respondent denied the charges. Applying Matter of Koloamatangi, 23 I&N

Dec. 548 (BIA 2003), the Immigration Judge determined that the

respondent had never been accorded lawful permanent resident status

because he was ineligible for adjustment of status at the time that he

applied. Specifically, the Immigration Judge found that the respondent

made a false claim to United States citizenship by knowingly purchasing an

illegally obtained birth certificate and Social Security card and that he did

not disclose his arrest in this regard in his adjustment of status application.

Based on these findings, the Immigration Judge concluded that the

respondent’s permanent resident status was unlawfully obtained and that he

could therefore be deemed an “arriving alien” and charged under section

212(a) of the Act.2 He then found the respondent inadmissible as charged.

The Immigration Judge further found the respondent ineligible for relief

from removal and ordered him removed from the United States.

II. ISSUE

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

1

The evidence in the record is not entirely clear as to whether the respondent, in fact,

voluntarily presented himself at the passport office.

2

The term “arriving alien” is defined in relevant part as “an applicant for admission

coming or attempting to come into the United States at a port-of-entry” or by certain

other means. 8 C.F.R. §§ 1.2, 1001.1(q) (2015).

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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.3

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.

III. ANALYSIS

The respondent argues that he has not been properly charged and that

these proceedings should have been terminated. He first contends that he

should not have been charged as an arriving alien when he returned to the

United States because his eligibility for adjustment of status had not been

determined at the time of his return. He asserts that if the DHS suspected

he was inadmissible at the time he adjusted his status, he should have been

allowed to enter as a returning resident and charged with a ground of

deportability in section 237(a) of the Act, 8 U.S.C. § 1227(a) (2012).

The respondent also disputes the Immigration Judge’s determination

that he “willfully misrepresented a material fact” in his application for

adjustment of status, in which he indicated that he had never been arrested.

The respondent claims that he was not aware that his contact with the

Department of State’s passport office constituted an arrest. He notes that

3

Section 101(a)(13)(C) of the Act provides:

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

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.

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his adjustment application was granted after he submitted all of the

information requested in that regard.

A. Returning Lawful Permanent Residents as Arriving Aliens

In deciding whether the respondent is an arriving alien, we examine 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 section 101(a)(13)(C)

of the Act. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our

first step in interpreting a statute is to determine whether the language at

issue has a plain and unambiguous meaning with regard to the particular

dispute in the case.”); Matter of Valenzuela, 25 I&N Dec. 867, 869

(BIA 2012). Whether language is plain and unambiguous is “determined

by reference to the language itself, the specific context in which that

language is used, and the broader context of the statute as a whole.”

Robinson v. Shell Oil Co., 519 U.S. at 341.

The plain language of section 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 lawful permanent resident status is not to be treated as

seeking an admission and should not be regarded as an arriving alien.

See also Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988) (stating that

the Government has the burden to show that an alien should be deprived of

his lawful permanent resident status if he has a colorable claim to returning

resident status).

In addition to the plain language of the statute, we find further

support for our position in our case law interpreting the “Fleuti doctrine,”

which predated section 101(a)(13)(C) of the Act. Rosenberg v. Fleuti,

374 U.S. 449 (1963).4 For example, in Matter of Rangel, 15 I&N Dec. 789

(BIA 1976), we addressed whether a lawful permanent resident’s attempted

return constituted an “entry” where her original admission for permanent

4

Before section 101(a)(13)(C) of the Act was enacted by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208,

110 Stat. 3009-546 (“IIRIRA”), the question whether a returning lawful permanent

resident was considered to be making an “entry” was initially governed by the so-called

“reentry doctrine.” See Leal-Rodriguez v. INS, 990 F.2d 939, 942−43 (7th Cir. 1993).

However, the Supreme Court announced a departure from the long-established concept of

“entry” under former section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1958),

stating that a new entry did not occur when the trip outside the United States was

“innocent, casual, and brief.” Rosenberg v. Fleuti, 374 U.S. at 462. We subsequently

recognized that the Fleuti doctrine applied only to absences by aliens who had previously

been lawfully admitted for permanent residence. See Matter of Castillo-Pineda, 15 I&N

Dec. 274 (BIA 1975); Matter of Dabiran, 13 I&N Dec. 587 (BIA 1970).

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residence was unlawful because it involved a false claim. In that case, we

had to decide first whether the proper forum in which to adjudicate the

lawfulness of an original admission was a deportation proceeding or an

exclusion proceeding.5 We held that the alien was not making an entry

within the meaning of the Act and, therefore, that the proper forum for

adjudicating the lawfulness of her original admission was a deportation

proceeding. Id. at 791−92.6

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. See Landon v. Plasencia,

459 U.S. 21, 30−32 (1982) (citing Chew v. Colding, 344 U.S. 590 (1953)).7

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).8

5

At that time, the immigration system was bifurcated into two types of proceedings. In

general, aliens who were already present in the United States were subject to deportation

proceedings, and aliens seeking to enter the country were placed in exclusion

proceedings. The IIRIRA revised this system. Generally, both classes of aliens are now

placed into removal proceedings, but they are charged with either deportability under

section 237(a) of the Act or inadmissibility under section 212(a).

6

We have applied this reasoning from Matter of Rangel in other contexts. For

example, in Matter of Umale, 16 I&N Dec. 682 (BIA 1979), we held that a petitioner’s

lawful permanent resident status cannot be attacked in visa petition proceedings based on

an allegation that such status was improperly obtained if the petitioner is residing in the

United States. In that case, we held that “until the petitioner has been found deportable

according to the procedures specified by law, she remains a lawful permanent resident of

the United States.” Id. at 683 (emphasis added).

7

The dissent is misguided in not recognizing that the rationale of the Supreme Court

and Board case law was to confer advantages on the class of lawful permanent residents

such as the respondent.

8

We recognize that in Matter of Collado, 21 I&N Dec. 1061, 1065 (BIA 1998), we

determined that the Fleuti doctrine had not survived the enactment of section

101(a)(13)(C) of the Act by the IIRIRA. However, since our decision was issued, the

Supreme Court has held that at least one aspect of the Fleuti doctrine survived the

IIRIRA amendments. See Vartelas v. Holder, 132 S. Ct. 1479 (2012) (holding that the

(continued . . .)

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In light of the plain statutory language of section 101(a)(13)(C) of the

Act and the above-mentioned decisions of the Supreme Court and the

Board, we believe that the long-established principles regarding the

constitutional rights of lawful permanent residents are equally applicable to

returning lawful permanent residents today as they were in the past.

See generally United States v. Texas, 507 U.S. 529, 534 (1993) (stating that

statutes are to be read with a presumption that favors the retention of

familiar principles, except when a contrary purpose is evident). Therefore,

we conclude that a returning 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 seeking admission to the United States.

B. Application to the Respondent

The Immigration Judge found that the respondent was never “lawfully

admitted” as a permanent resident because he had obtained his status

through fraud. He therefore concluded that the respondent could be

regarded as an arriving alien. In making this determination, he relied on

our decision in Matter of Koloamatangi, 23 I&N Dec. 548, where we held,

in the context of eligibility for relief, that an alien who acquired permanent

resident status through fraud or misrepresentation had never been “lawfully

admitted for permanent residence” and was therefore ineligible for

cancellation of removal under section 240A(a) of the Act, 8 U.S.C.

§ 1229b(a) (2000).9 See also Mejia-Orellana v. Gonzales, 502 F.3d 13

(1st Cir. 2007). Applying this rationale, the Immigration Judge adjudicated

the issue of the lawfulness of the respondent’s status and found that it had

been fraudulently obtained. He therefore found that the respondent was

_______________________________________

Fleuti doctrine still applies to lawful permanent resident aliens who traveled abroad after

a conviction that predated the IIRIRA). The extent to which Fleuti remains good law

after section 101(a)(13)(C) of the Act was adopted by the IIRIRA continues to be a

vigorously contested issue. The Board and some Federal courts have considered the

question whether the Fleuti doctrine survived the enactment of section 101(a)(13)(C)

in the broader context of deciding whether the exceptions listed in sections

101(a)(13)(C)(i)−(vi) of the Act applied to the returning lawful permanent residents in

those cases. However, section 101(a)(13)(C) of the Act does not address or otherwise

include within its exceptions a lawful permanent resident in the respondent’s

circumstances. The resolution of this case does not implicate the larger issue of the

extent to which the Fleuti doctrine has, in fact, survived the IIRIRA.

9

In Matter of Koloamatangi, we relied on the rationale from our prior decision in

Matter of T-, 6 I&N Dec. 136 (BIA, A.G. 1954). However, we note that in that case the

issue was whether the alien was returning to an unrelinquished “lawful domicile,” not

whether he had been lawfully admitted for permanent residence.

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never a lawful permanent resident and thus could be treated as an “arriving

alien.”

The question whether a returning lawful permanent resident can be

regarded as an arriving alien and charged under section 212(a) of the Act

was not before us in Matter of Koloamatangi because the alien, who was

suspected of having procured his status by fraud, was charged with

deportability under section 237(a) of the Act. He was therefore afforded

the due process owed to him as one who “was facially and procedurally in

lawful permanent resident status.” Matter of Koloamatangi, 23 I&N Dec.

at 549. His ineligibility for the relief he sought was determined after the

Immigration Judge resolved the issue of the unlawfulness of his permanent

resident status, not prior to the commencement of proceedings. See id.;

see also Matter of Wong, 14 I&N Dec. 12 (BIA 1972).10 We therefore

conclude that Matter of Koloamatangi is not controlling in this case.

Because the respondent is a lawful permanent resident who does not fall

within one of the exceptions in section 101(a)(13)(C) of the Act, he should

not have been regarded as seeking admission to the United States.

Therefore, he cannot be charged under section 212(a) of the Act,

notwithstanding any questions regarding the lawfulness of his status.

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 will remand the record to allow the Immigration Judge to address

these issues in the first instance, if necessary. If the DHS can meet its

burden of proving that the respondent is deportable as an alien who

acquired lawful permanent resident status through fraud, then in terms of

available relief from removal, the respondent will be in the same position

he would have been in if he had never obtained such status. See Matter of

Koloamatangi, 23 I&N Dec. 548. We express no opinion as to whether the

DHS can meet its burden in this particular case.

10

Given our disposition in this case, we need not decide which party would bear the

burden of proving admissibility if a returning permanent resident were properly charged

under section 212(a) of the Act based on an allegation that he had unlawfully obtained his

status. See generally Matter of Rivens, 25 I&N Dec. 623, 626 (BIA 2011) (noting the

“open question of who . . . bears the burden of showing admissibility, or a lack of

inadmissibility, once it has been determined that an alien is an applicant for admission”).

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IV. CONCLUSION

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.

ORDER: The respondent’s appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.

DISSENTING OPINION: Roger A. Pauley, Board Member

I believe that the respondent was properly charged under section 212(a)

of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012). As an

ostensible returning lawful permanent resident, he did not need to be

charged under section 237(a) of the Act, 8 U.S.C. § 1227(a) (2012),

because the Immigration Judge found at his removal proceeding that he was

never lawfully admitted for permanent residence.

The majority arrives at the opposite result by, in effect, limiting our

decision in Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), where

we held that an alien who acquired permanent resident status through fraud

or misrepresentation has never been “lawfully admitted for permanent

residence,” to the context in which an ostensible lawful permanent resident

seeks relief. The majority therefore finds that Matter of Koloamatangi

does not apply to the situation in which a returning lawful permanent

resident is found to have wrongly obtained his status during removal

proceedings. The majority explains that such a person must be charged

under section 237(a) of the Act because he does not fall into any of the six

enumerated categories at section 101(a)(13)(C) of the Act, 8 U.S.C.

§ 1101(a)(13)(C) (2012), allowing for a returning lawful permanent

resident to be charged as an applicant for admission. I disagree.

The majority’s position embodies a stark violation of the bedrock

principle of statutory construction that a term, in this case “lawfully

admitted for permanent residence,” appearing in the same statute should be

given an identical construction and not be accorded two different meanings.

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In that regard, we have consistently held, and the courts of appeals

have uniformly endorsed our interpretation, that the phrase “lawfully

admitted for permanent residence” means that the alien must have

been in substantive compliance with the immigration laws. See Injeti

v. U.S. Citizenship & Imm. Serv., 737 F.3d 311 (4th Cir. 2013);

Estrada-Ramos v. Holder, 611 F.3d 318 (7th Cir. 2010); Kyong Ho Shin

v. Holder, 607 F.3d 1213 (9th Cir. 2010); Walker v. Holder, 589 F.3d

12 (1st Cir. 2009); De La Rosa v. U.S. Dep’t of Homeland Sec., 489 F.3d

551 (2d Cir. 2007); Savoury v. U.S. Att’y Gen., 449 F.3d 1307 (11th Cir.

2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005); Matter

of Koloamatangi, 23 I&N Dec. 548. Moreover, this understanding long

preceded the 1996 enactment of section 101(a)(20) of the Act. See, e.g.,

Monet v. INS, 791 F.2d 752 (9th Cir. 1986); Matter of Longstaff, 716 F.2d

1439 (5th Cir. 1983); Matter of T-, 6 I&N Dec. 136 (BIA, A.G. 1954).

Significantly, Congress chose to use the same term in section

101(a)(13)(C) of the Act, which is applicable to returning lawful permanent

residents, demonstrating that Congress intended that only lawful permanent

residents with valid status are subject to its regime. It would have been

easy for Congress to preface section 101(a)(13)(C) of the Act with language

asserting the construction that the majority would engraft on that section,

such as that an alien “admitted for lawful permanent residence, whether or

not such status was rightly conferred,” shall not be regarded as seeking

admission unless one or more of the six enumerated exceptions applies.

However, by using the very term it defined in section 101(a)(20) of the Act

(indeed, the same subsection!), Congress clearly expressed its intent that

the definition therein applies. Thus, the Immigration Judge correctly

determined that Matter of Koloamatangi governs. The fact that a different

regime existed prior to the 1996 enactment of section 101(a)(13)(C) of the

Act is irrelevant where we have found that Congress intended to abandon

that regime for returning lawful permanent residents in significant respects.

See Matter of Collado, 21 I&N Dec. 1061 (BIA 1998).

The majority maintains that the respondent was entitled to be treated as

a lawful permanent resident for entry purposes because at the time he

arrived at the point of entry, it had not yet been determined that his

permanent resident status had been improperly conferred, and none of the

six exceptions in section 101(a)(13)(C) of the Act was implicated. Once

again, I disagree. Just as we determined in Matter of Valenzuela-Felix,

26 I&N Dec. 53 (BIA 2012), the ensuing removal proceeding is the proper

forum in which to make a determination whether the respondent was

correctly charged under section 212(a) of the Act.

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

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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.1

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.2

For the foregoing reasons, I would find that the Immigration Judge

correctly applied Matter of Koloamatangi to sustain the charges under

section 212(a) of the Act.

1

For example, section 212(i) of the Act generally requires a showing of “extreme

hardship” to a qualifying relative, whereas section 237(a)(1)(H) of the Act contains no

such requirement.

2

Indeed, the majority decision seemingly requires that even an alien who purchased a

fraudulent green card, but was not convicted of that offense, is entitled to be charged

under section 237(a) of the Act. I recognize that, on occasion, a lawful permanent

resident who obtained status wrongly may not be at fault, for example, where a child

obtained status derivatively and was unaware of his or her parent’s wrongful acts in

obtaining lawful permanent resident status, or where the DHS erred in conferring lawful

permanent resident status despite full disclosure by an alien of facts that should have led

to the denial of adjustment. But such instances are relatively rare and, in any event, such

an alien has nevertheless benefited from a status wrongly conferred.

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