Can Lawful Permanent Residents Be Treated as “Arriving Aliens” in Removal Proceedings?
In re Peña, 26 I. & N. Dec. 613 (B.I.A. 2015).
Substance of the Case:
The case addresses whether a lawful permanent resident (LPR) returning to the United States can be treated as an “arriving alien” and charged with inadmissibility under section 212(a) of the Immigration and Nationality Act (INA) due to allegations of fraudulently obtaining their status. The central legal question revolves around whether LPRs can be deemed as seeking admission upon return and subjected to inadmissibility charges if they do not fall under specific exceptions listed in section 101(a)(13)(C) of the INA.
Facts of the Case
1. Background of the Respondent
- The respondent, a citizen of the Dominican Republic, became a lawful permanent resident in 2000 after applying for adjustment of status based on his U.S. citizen spouse’s visa petition.
- During the adjustment process, he did not disclose that he had been arrested for attempting to fraudulently obtain a U.S. passport.
2. Incident Leading to Removal Proceedings
- In 2010, after a trip abroad, the respondent sought reentry into the U.S. During an interview with immigration officials, he admitted to his prior arrest but claimed he did not disclose it earlier because he believed it did not qualify as an “arrest.”
- The Department of Homeland Security (DHS) initiated removal proceedings, charging him as inadmissible under section 212(a) for allegedly obtaining LPR status through fraud and misrepresentation.
3. Immigration Judge’s Decision
- The Immigration Judge determined that the respondent was never lawfully admitted as an LPR due to fraud.
- The judge treated the respondent as an “arriving alien,” upheld the inadmissibility charges, and ordered his removal.
Analysis by the Board of Immigration Appeals (BIA)
1. Key Legal Question
- Can a returning LPR be treated as an “arriving alien” and charged with inadmissibility under section 212(a) of the INA, even if the LPR does not fall within the statutory exceptions under section 101(a)(13)(C)?
2. Statutory Framework
- Section 101(a)(13)(C) lists exceptions under which an LPR can be treated as seeking admission, such as abandonment of residency or criminal conduct. The respondent did not fall within these exceptions.
- Long-standing principles, supported by prior case law (Matter of Rangel and Rosenberg v. Fleuti), state that an LPR with a “colorable claim” to lawful status should not be treated as seeking admission.
3. BIA’s Reasoning
- The respondent’s prior adjustment of status was a procedural grant, and any challenge to its validity should occur in deportation proceedings under section 237(a), not inadmissibility proceedings under section 212(a).
- Treating the respondent as an arriving alien disregards the due process rights owed to LPRs, as established by Supreme Court precedent (Landon v. Plasencia).
Outcome of the Case
- The BIA ruled that the respondent, as an LPR not falling under section 101(a)(13)(C) exceptions, could not be treated as an arriving alien or charged with inadmissibility under section 212(a).
- The BIA sustained the respondent’s appeal, vacated the Immigration Judge’s decision, and remanded the case.
- On remand, DHS could pursue deportability charges under section 237(a) if it sought to challenge the respondent’s lawful permanent resident status.
Conclusion
The BIA decided that lawful permanent residents (LPRs) who return to the U.S. after travel abroad cannot be treated as new entrants or “arriving aliens” unless they meet specific exceptions outlined by law, such as committing serious crimes or abandoning their residency. In this case, even though the respondent may have obtained his green card through fraud, the proper way for the government to challenge his status was through deportation proceedings, not inadmissibility proceedings. This distinction ensures that LPRs are given the full legal protections and due process rights guaranteed under U.S. immigration law.
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