Criminal Defense of Immigrants


§ 17.6 1. Returning LPRs Seeking Admission

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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.[36]  An LPR will be found to be seeking a new “admission” to the United States where any one of the following conditions exist:


(1)     s/he has abandoned permanent resident status,[37]

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

(3)     s/he engaged in “illegal activity” after leaving the U.S.,[38]

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

(5)     s/he has committed an offense listed in INA § 212(a)(2),[39] the criminal grounds of inadmissibility, unless it has been waived, or

(6)     s/he is attempting to enter without inspection.[40]


                An earlier rule that found no new admission has occurred if an LPR’s trip abroad was “brief, casual and innocent,”[41] has generally been found to have been superceded by statute.[42]  The courts have generally found that treating an LPR inside the country differently from and LPR outside the country does not violate equal protection.[43]


Noncitizens normally bear 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.  See § 17.6, infra.


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

[37] See, e.g., 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).

[38] See, e.g., 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).

[39] 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.  See Chapter 18, infra.  They do not include domestic violence offenses, aggravated felonies, or firearms offenses.

[40] 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.  

[41] Known as the Fleuti doctrine, after Rosenberg v. Fleuti, 374 U.S. 449 (1963).

[42] See, e.g., Malagon de Fuentes v. Gonzales, 462 F.3d 498 (5th Cir. Aug. 28, 2006) (Fleuti doctrine does not apply to trips made outside the United States after IIRAIRA effective date of Sept. 30, 1996; Fleuti doctrine has no constitutional basis); Tapia v. Ashcroft, 351 F.3d 795, 799 (7th Cir. 2003); Tineo v. Ashcroft, 350 F.3d 382, 394 (3d Cir. 2003); Rivera-Jimenez v. INS, 214 F.3d 1213, 1218 n.6 (10th Cir. 2000); Matter of Collado, 21 I. & N. Dec. 1061, 1064-66 n.3 (BIA 1998).

[43] See, e.g., Malagon deFuentes v. Gonzales, 462 F.3d 498 (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 for purposes of INA § 212(h) waiver eligibility).



Vartelas v. Holder, 132 S.Ct. 1479 (Mar. 29, 2012) (INA 101(a)(13)(C)(v), 8 U.S.C. 1101(a)(13)(C)(v), providing that the commission of a criminal offense identified in INA 212(a)(2), 8 U.S.C. 1182(a)(2), is an exception to the presumption that a LPR returning from abroad is not seeking admission and is therefore subject to the grounds of inadmissibility, does not apply to criminal offenses committed on or prior to Sept. 30, 1996, the effective date of IIRAIRA).


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).

First Circuit

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.

Second Circuit

Vartelas v. Holder, 689 F.3d 121 (2d Cir. Aug. 6, 2012) (on remand from Vartelas v. Holder, 132 S. Ct. 1479 (2012), which implicitly required the conclusion that the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) change should not be applied to petitioner retroactively, the case is remanded to the BIA to consider whether he was prejudiced by his attorney's failure to argue the issue of retroactivity).

Ninth Circuit

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).