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).

BIA

INADMISSIBILITY " APPLICANT FOR ADMISSION " ARRIVING LPR " COMMITTING ILLEGAL ACTIVITY AT PORT OF ENTRY
Matter of Martinez, 25 I&N Dec. 845, 848 (BIA 2012) (a lawful permanent resident of the United States may be treated as an applicant for admission, pursuant to INA 101(a)(13)(C)(iii), 8 U.S.C. 1101(a)(13)(C)(iii), where the returning LPR engaged in illegal activity at a United States port of entry by attempting to bring an undocumented juvenile alien into the United States); citing Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

ADMISSIBILITY - ARRIVING ALIEN - BURDEN OF PROOF - BURDEN ON GOVERNMENT WHERE APPLICANT HAS COLORABLE CLAIM TO LPR STATUS
Matter of Huang, 19 I. & N. Dec. 749, 754 (BIA 1988) ("While the burden of proving admissibility is generally on the applicant in exclusion proceedings, see section 291 of the Act, 8 U.S.C. 1361 (1982), where an applicant for admission has a colorable claim to returning resident status, the burden is on the Service to show that the applicant should be deprived of his or her status as a lawful permanent resident. Matter of Salazar, 17 I & N Dec. 167 (BIA 1979); Matter of Kane, [15 I & N Dec 258 (BIA 1975)]").

First Circuit

ADMISSION - LAWFUL PERMANENT RESIDENT - FLEUTI DOCTRINE
De Vega v. Gonzales, __ F.3d __, 2007 WL 2696489 (1st Cir. Sept. 17, 2007) (Fleuti doctrine did not survive amendments to INA 101(a)(13) made as part of IIRAIRA), agreeing with Malagon de Fuentes v. Gonzales, 462 F.3d 498, 501 (5th Cir. 2006); Tapia v. Ashcroft, 351 F.3d 795, 799 (7th Cir.2003); Tineo v. Ashcroft, 350 F.3d 382, 394 (3d Cir.2003)). Note: both the conviction and travel occurred after April 1, 1997.

Fifth Circuit

DEPORTATION VS. INADMISSIBILITY - EQUAL PROTECTION
Malagon deFuentes v. Gonzales, __ F.3d __, 2006 WL 2468306 (5th Cir. Aug. 28, 2006) (no equal protection violation to treat LPRs inside the United States differently from LPRs seeking admission to the United States).

Ninth Circuit

TEMPORARY REDISENT STATUS " REVOCATION
United States v. Hernandez-Arias, 745 F.3d 1275 (9th Cir. Mar. 21, 2014) (termination of defendant's temporary status operated to revoke any "admission" resulting from the prior adjustment of status, rendering the defendant unadmitted and removable, so removal order was not fundamentally unfair).

ADMISSIBILITY - RETURNING LAWFUL PERMANENT RESIDENT - RETROACTIVITY - IIRAIRA DEFINITION OF "SEEKING ADMISSION" DOES NOT APPLY RETROACTIVELY TO GUILTY PLEA PREDATING APRIL 1, 1997
Camins v. Gonzales, ___ F.3d ___, 2007 WL 2421466 (9th Cir. Aug. 28, 2007) (Fleuti [Rosenberg v. Fleuti, 374 U.S. 449 (1963)] doctrine, holding noncitizen is not subject to grounds of inadmissibility on return from a trip abroad that is "innocent, casual, and brief" continues to apply where conviction resulted from plea entered prior to April 1, 1997, despite new INA 101(a)(13)(C)(v), as amended by IIRAIRA 301(a)(13): "We hold that IIRIRA 301(a)(13) did abrogate the old INA 101(a)(13) and the Fleuti doctrine, but that the new law cannot be applied retroactively to LPRs who acted in reasonable reliance on the old law prior to IIRIRAs effective date."), following INS v St. Cyr, 533 U.S. 289 (2001).

Other

ARRIVING ALIEN - NOT DEPORTABLE = UNSTATED EXCEPTION TO "SEEKING ADMISSION STATUTE"
Where LPR who is not deportable briefly leaves the United States, it would arguably violate Substantive Due Process and Equal Protection to consider him or her an arriving alien, and thus inadmissible, and the court must seek a construction of INA 101(a)(13)(C)(v) which avoids these constitutional problems. Note that INA 101(a)(13)(C)(v) contains no exceptions for people granted waivers under INA 212(c), 212(i), or former suspension of deportation under 244. This strengthens the argument that this provision is not all-inclusive, and that another exception is someone who was not removable when s/he left the country. An equal protection claim may be brought to challenge the distinction between LPRs, who committed offenses falling under INA 212(a)(2) but not under INA 237(a)(2), who made brief, innocent departures, and those who, on the other hand, committed such offenses, but never departed (or who did depart, but were not stopped at the border upon their return). Thanks to Lisa Brodyaga for this argument.