(D) Prior to, At, or Within Five Years of Entry.  This ground does not apply to persons who otherwise fall within this ground if the offense occurs five years after any entry.  Because Congress here used the term “any entry,” this language means more than “five years after admission.”  Only those who have been admitted are subject to the grounds of deportation,[207] so in practice this language cannot mean that this ground reaches noncitizens who entered without admission.

 

                Instead, this language arguably means that a Lawful Permanent Resident who has left the United States and re-entered may fall under this ground if the offense was committed within five years of re-entry, even if the LPR was not considered to have made a new admission[208] upon his/her return to the United States.  In this case it may be beneficial to argue that the Fleuti doctrine still survives.  Under the former Fleuti doctrine, a returning permanent resident’s departure did not constitute a meaningful departure and re-entry if the trip was brief, innocent and casual.[209]  Therefore, even if the LPR made a short trip abroad within five years of the conduct, the return arguably would not constitute an “entry.”

[207] See § 17.4, infra.

[208] See § § 17.5-17.8, infra.

[209] Rosenberg v. Fleuti, 374 U.S. 449 (1963).  See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 51.05[1] (2007), for full discussion of the Fleuti doctrine.  See INA § 101(a)(13), 8 U.S.C. § 1101(a)(13).  The statutory definition of admission creates a presumption that a returning permanent resident is not seeking to make a new admission unless s/he falls under one of the express exceptions listed in the statute.

Fifth Circuit

DEPORTABILITY " ALIEN SMUGGLING " CONVICTION FOR AIDING IMPROPER ENTRY SUFFICIENT TO ESTABLISH GROUND OF DEPORTATION
Santos-Sanchez v. Holder, 744 F.3d 391 (5th Cir. Mar. 7, 2014) (federal conviction for aiding and abetting improper entry into the U.S., in violation of 8 U.S.C. 1325(a), established deportability under INA 237(a)(1)(E)(i), 8 U.S.C. 1227(a)(1)(E)(i), and conviction documents are sufficient to establish substantial evidence to support the BIA determination of deportability).