Criminal Defense of Immigrants

 

As discussed in § 18.5, supra, a lawful permanent resident returning from trip abroad is not generally considered an applicant for admission, and is therefore not subject to the grounds of inadmissibility.  There are six exceptions,[39] however, including an exception under which the LPR may be found inadmissible to the United States under any of the crime-related grounds of inadmissibility.[40]

 

While the government bears the burden of establishing deportability for a noncitizen who has been lawfully admitted to the United States,[41] a noncitizen seeking admission bears the burden to show s/he is admissible.[42]  Since a returning lawful permanent resident is not considered an applicant for admission unless s/he fits into one of the exceptions,[43] the question arises of who bears the burden of showing whether the returning lawful permanent resident fits into one of those exceptions, and is therefore subject to the grounds of inadmissibility and forced to bear the burden of proof that s/he is admissible.

 

Under a prior version of the Act, the BIA held in Matter of Kane that the government has the burden to prove the grounds of inadmissibility in cases involving a returning lawful permanent resident.[44]  In Toro-Romero v. Ashcroft,[45] the Ninth Circuit held that before the immigration court could determine whether the returning lawful permanent resident in that case was subject to the grounds of inadmissibility, the court had first to determine whether the noncitizen’s conviction was a crime involving moral turpitude, and thus fell within one of the six exceptions.  Unfortunately, the court did not make clear who had the burden of showing the crime involved moral turpitude.  In a recent unpublished index decision, however, the BIA held that the government has the burden, in the case of a returning lawful permanent resident, of showing that s/he comes within one or more of the six exceptions,[46] since that section creates a presumption that the government must overcome.[47]

 

If immigration counsel is representing a returning lawful permanent resident respondent charged with inadmissibility, counsel should not admit that the respondent is seeking admission, and should instead first require the government to prove that the respondent falls within one of the exceptions.

 

                Examples: Bob, Carol, Ted and Alice adjusted status to permanent residency in 1990.  All were convicted of felony burglary (under a divisible statute that may or may not be a crime involving moral turpitude) in 1998.  In 1996, Bob left the U.S. for a month-long visit with his family.  His 1996 return to the U.S. should not be held to be an admission, because he did not come within one of the six exceptions at that time.  Therefore, he should not be held deportable for commission of a moral turpitude offense within five years of admission, because he committed the offense in 1998 and his last admission was 1990. 

 

                Ted left the country in 1996 and remained outside the country for over six months.  Because this comes within one of the six exceptions,[48] Ted will be held to have made an admission in 1996, and will be held to be deportable for commission of the 1998 crime within five years of his last admission.[49]

 

                Alice and Carol left the country in 2000 for a short trip.  Upon arriving in the United States, the government issued Notices to Appear charging them with inadmissibility, as noncitizens convicted at any time of a CMT.[50] 

 

Alice conceded that she was an applicant for admission.  Since the conviction was divisible, and the record of conviction did not clarify the issue, Alice was found inadmissible because she could not meet her burden to show that the conviction was not a CMT.

 

                Carol refused to admit that she was an applicant for admission, and the court held the government had the burden to show that Carol had been convicted of a CMT.  Since the conviction was divisible, and the record of conviction did not clarify the issue, Carol was found not to have committed a CMT.

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

[40] INA § 101(a)(13)(C)(v), 8 U.S.C. § 1101(a)(13)(C)(v).  See also 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 under INA § 101(a)(13)(C)), 8 U.S.C. § 1101(a)(13)(C)).

[41] INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A).

[42] INA § 240(c)(2)(A), 8 U.S.C. § 1229a(c)(2)(A).

[43] See Matter of Collado, 21 I. & N. Dec. 1061, 1064 (BIA 1998).

[44] Matter of Kane, 15 I. & N. Dec. 258, 264 (BIA 1975) (citing Kwong Hai Chew v. Colding, 344 U.S. 590 (1953)).

[45] Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir. Aug. 30, 2004).  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 resident falls within exception listed in INA § 101(a)(13)(C), 8 U.S.C. § 1101(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); Matter of Huang, 19 I. & N. Dec. 749 (BIA 1988) (“where an applicant for admission has a colorable claim to returning lawful permanent 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” by clear and convincing evidence); Matter of Salazar, 17 I. & N. Dec. 167 (BIA 1979).

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

[47] Matter of Luna, A74 317 521, at 5 (BIA May 24, 2000) (index decision) http://www.usdoj.gov/eoir/vll/intdec/indexnet00/luna.pdf.

[48] INA § 101(a)(13)(C)(ii), 8 U.S.C. § 1101(a)(13)(C)(ii) (absent from the United States for a continuous period of over 180 days).

[49] INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).

[50] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).