Criminal Defense of Immigrants

A lawful permanent resident returning from abroad is not considered an applicant for admission (and is therefore not subject to the grounds of inadmissibility) unless:

(1)     s/he has abandoned permanent resident status,[24]

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

(3)     s/he engaged in “illegal activity” after leaving the U.S.,[25]

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

(5)     s/he has committed, at any time, an offense listed in INA § 212(a)(2),[26] the criminal grounds of inadmissibility (unless it has been waived), or

(6)     s/he is attempting to enter without inspection.[27]

Because these are exceptions to the general rule that a lawful permanent resident returning from abroad is not an application for admission, some courts have suggested that the DHS, not the LPR, bears the burden of proving that the noncitizen is seeking admission, and is therefore subject to the grounds of inadmissibility.  See § 18.7, infra.

                For criminal counsel, the most relevant exception is where the LPR has committed (or been convicted of) an offense that renders them inadmissible under[28] the crime-related grounds of inadmissibility.[29]  Even if a client has been lawfully admitted to the United States, and even if the client is a lawful permanent resident, s/he will become subject to the grounds of inadmissibility if s/he leaves the United States and attempts to return.  Any client potentially subject to inadmissibility should be advised not to leave the United States unless they are able to naturalize or otherwise negate the conviction or conduct that makes them inadmissible.

[24] 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); Katebi v. Ashcroft, 396 F.3d 463 (1st Cir. Feb. 3, 2005) (lawful permanent resident abandoned status upon moving to, working in, and applying for Canadian citizenship shortly after gaining LPR status in the United States, and upon repeated and lengthy trips to Iran).

[25] 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).

[26] 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.  See Appendix E, infra.

[27] 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.  At least one court has found the changes to INA § 101(a)(13)(C) to be impermissibly retroactive as applied to certain noncitizens with criminal convictions.  Olatunju v. Ashcroft, 387 F.3d 383 (4th Cir. Oct. 19, 2004).

[28] INA § 212(a)(2), 8 U.S.C. § 1182(a)(2).

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