Aggravated Felonies

If a Lawful Permanent Resident of the United States returns to the United States after a trip abroad, the entry is not considered to be a new “admission”  unless certain specific conditions exist.[116]  While a returning lawful permanent resident is presumed not to make a formal admission back into the country, there are six exceptions to this rule.  A new “admission” will be found where any one of the following conditions exist:

(1)  s/he has abandoned permanent resident status,[117]

(2)  s/he has been absent for 180 days at one time,

(3)  s/he engaged in “illegal activity” after leaving the U.S.,[118]

(4)  s/he departed while removal or extradition proceedings were pending,

(5)  s/he has committed an offense listed in INA § 212(a)(2),[119] the criminal grounds of inadmissibility (unless it has been waived), or

(6)  s/he is attempting to enter without inspection.[120]

Since an aggravated felony conviction is not listed in INA § 212(a)(2) as a ground of inadmissibility, an aggravated felony conviction will not cause an entry to be considered an “admission” under 8 U.S.C. § 1101(a)(13)(C)(v) when a Lawful Permanent Resident is returning from abroad, so long as the conviction does not fall within another criminal ground of inadmissibility listed in INA § 212(a)(2).

            The noncitizen normally bears the burden of proof in inadmissibility proceedings.  However, when the noncitizen is a returning Lawful Permanent Resident, the burden of proof to establish the noncitizen is subject to the grounds of inadmissibility is on the DHS.[121]

            An arriving alien may be able to adjust status under INA § 245(i) as a defense to removal.[122]

[116] INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).

[117] Hana v. Gonzalez, 400 F.3d 472 (6th Cir. Mar. 14, 2005) (looking at totality of the circumstances, Iraqi woman did not abandon her LPR status, despite 4 ½ years of living abroad, where the reason for her absence from the United States was because she feared her absence would alert the Government to her attempt to immigrate herself and her family to the United States, and because she needed to care for her ailing mother).

[118] Gonzalez-Martinez v. INS, 58 F.3d 307 (9th Cir. 2003) (court affirmed BIA decision that respondents were properly treated as arriving aliens under INA § 101(a)(13)(C)(iii), 8 U.S.C. § 1101(a)(13)(C)(iii) for engaging in alien smuggling after departing the United States, because substantial evidence in the record supports the BIA’s holding).

[119] The criminal grounds of inadmissibility listed in INA § 212(a)(2), 8 U.S.C. § 1182(a)(2), include: one CMT conviction, a conviction relating to a federally listed controlled substance, multiple convictions resulting in aggregate sentence of five years or more, reason to believe the noncitizen was a drug trafficker, and certain prostitution, commercialized vice, espionage, sabotage, terrorist, or genocidal offenses.  They do not include domestic violence offenses, aggravated felonies, or firearms offenses.

[120] INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).  Under the law prior to IIRAIRA, which replaced the term “entry” with “admission,” a permanent resident who left the United States upon return made an “entry” into the United States only if s/he “inten[ded] to depart in a manner which can be regarded as meaningfully interruptive of [] permanent residence.” Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963).  To avoid characterization as meaningfully interruptive, the departure must have been “innocent, casual and brief.” Ibid.  The Board of Immigration Appeals, however, held that the Fleuti doctrine has been overruled by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which replaced the term “entry” with “admission.” Matter of Jesus Collado-Munoz, 21 I. & N. Dec. 1061 (BIA 1998).  It is not clear whether the federal courts will agree.  

[121] Matter of Kane, 15 I. & N. Dec. 258 (BIA 1975); cf. Sandoval-Loffredo v. Gonzales, 414 F.3d 892 (8th Cir. July 13, 2005) (petitioner claimed that DHS must show, by clear and convincing evidence, that returning lawful permanent falls within exception listed in INA § 101(a)(13)(C); court found that IJ had put burden on DHS in finding petitioner had engaged in alien smuggling, and denied review; court refused to decide whether IJ was correct in placing burden on DHS). The government’s burden is then to show by clear and convincing evidence that the applicant should be deprived of lawful permanent resident status. See Matter of Huang, 19 I. & N. Dec. 749 (BIA 1988).  See also Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir. Aug. 30, 2004).

[122] Matter of Artigas, 23 I. & N. Dec. 99 (BIA 2001) (suggesting argument that certain arriving aliens may adjust status under INA § 245i).