Criminal Defense of Immigrants


§ 18.5 1. Lawful Permanent Residents

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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).




Matter of Fernandez-Taveras, 25 I&N Dec. 834 (BIA 2012) (lawful permanent resident previously granted cancellation of removal following conviction for non-marijuana controlled substances offense is ineligible to adjust status as a defense to removal, because the controlled substances offense continues to exist for immigration purposes and cannot be waived by INA 212(h); INA 101(a)(13)(C), making excepting noncitizens granted cancellation of removal is inapplicable to those in proceedings under INA 237 because they are not returning from travel abroad).

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

Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb. 29, 2008) ("Because of Singh's status as a permanent resident, the government bears the burden of proof, which it could only meet "by adducing clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true." Francis v. Gonzales, 442 F.3d 131, 138 (2d Cir. 2006) (quoting Woodby v. INS, 385 U.S. 276 (1966)).").

Ninth Circuit

Khoshfahm v. Holder, 655 F.3d 1147 (9th Cir. Aug. 25, 2011) (substantial evidence does not support the BIAs determination that petitioner, who lived for approximately six continuous years with his parents in Iran, abandoned his lawful permanent resident status).
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).
In accordance with Camins v. Gonzales, 500 F.3d 872, 885 (9th Cir. 2007), San Francisco CBPs Deferred Inspections Unit has stopped issuing NTAs to LPRs returning from a brief, casual, and innocent trip abroad, where their guilty or no contest plea to an pre-IIRIRA offense would previously have rendered them inadmissible under INA 212(a)(2).

Instead, these cases are referred to ICE when there may be a possible charge under INA 237(a)(2). Unfortunately, ICEs policy on taking people into custody is much stricter than CBPs. Therefore, people are being placed in mandatory detention that otherwise may have been released on their own recognizance.

Thanks to Joren Lyons, Staff Attorney for Immigrant Rights at Asian Law Caucus.