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  In a recent unpublished index decision, however, the BIA held that the government has the burden, in the case of a returning lawful permanent resident, of showing that s/he comes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).

BIA

INADMISSIBILITY " APPLICANT FOR ADMISSION " LAWFUL PERMANENT RESIDENTS " BURDEN
Matter of Guzman-Martinez, 25 I&N Dec. 845 (BIA 2012) (an LPR 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), if the DHS proves by clear and convincing evidence that the returning resident engaged in illegal activity at a United States port of entry; "illegal activity" is activity that is criminal; attempting to smuggle another into the United States constitutes criminal activity that occurred after departure from the United States and before re-admission). http://www.justice.gov/eoir/vll/intdec/vol25/3759.pdf

INADMISSIBLITY " BURDEN OF PROOF " RETURNING LAWFUL PERMANENT RESIDENT
Matter of Rivens, 25 I&N Dec. 623 (BIA Oct. 19, 2011) (DHS bears burden to show that a returning LPR is an applicant for admission under INA 101(a)(13)(C), 8 U.S.C. 1182(a)(13)(C)(2006)); see Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988) (holding, in the absence of a statutory standard, that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true); Matter of Kane, 15 I&N Dec. 258, 264 (BIA 1975); see also Landon v. Plasencia, 459 U.S. at 21, 35 (1982) (acknowledging the Boards practice at that time of placing the burden of proof on the Government with respect to returning lawful permanent residents in exclusion proceedings).

Second Circuit

INADMISSIBILITY " RETURNING LPR " EFFECTIVE DATE
Vartelas v. Holder, 620 F.3d 108, 2010 WL 3515503 (2d Cir. Sept. 9, 2010)(application of INA 101(a)(13)(C)(v), 8 U.S.C 1101 (a)(13)(C)(v),to LPR who re-entered U.S. after April 1, 1997 is not impermissibly retroactive when applied to pre-April 1, 1997 convictions).

IMMIGRATION STATUS - LAWFUL PERMANENT RESIDENT - RESCISSION
Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008) (USCIS must follow rescission procedure before cancelling an I-551 stamp in a passport, claiming it had been issued in error, because the stamp created a "rebuttable presumption of LPR status"). I-551 cards constitute evidence of LPR status, and counsel can argue it is improper for USCIS to take them back. See 8 C.F.R. 103.2(b)(17).

Third Circuit

INADMISSIBILITY " BURDEN OF PROOF ON GOVERNMENT TO ESTABLISH PROBABLE CAUSE TO BELIEVE LPR COMMITTED AN INADMISSIBLE OFFENSE
Doe v. Attorney General, 659 F.3d 266 (3d Cir. Sept. 8, 2011) (a lawful permanent resident entering the United States is presumed not to be seeking admission under INA 101(a)(13)(C)(v), 8 U.S.C. 1101(a)(13)(C)(v), unless the government establishes at the time of the entry probable cause to believe that the LPR has committed a listed offense: Where a warrant has issued for the alien's arrest on suspicion of the commission of one of the enumerated crimes, probable cause will be presumed. Where such a warrant has not issued, treatment of the arriving alien as an applicant for admission rather than as a permanent resident will be contingent on a judge's (or a magistrate's) assessment of the proffered basis for believing probable cause to exist. And, of course, if it becomes apparent at some later point that probable cause no longer exists, the government may no longer regard[ ] the lawful permanent resident as an applicant for admission.); cf. Cannon v. Macon Cnty., 1 F.3d 1558, 1563 (11th Cir. 1993) (holding that a detainee has a constitutional right to be released from confinement after it was or should have been known that [he] was entitled to release).

Eighth Circuit

REMOVAL PROCEEDINGS - BURDEN - RETURNING LAWFUL PERMANENT RESIDENTS
Kim v. Holder , 560 F.3d 833 (8th Cir. Mar. 26, 2009) (noncitizen who obtained LPR status by fraud cannot argue government bears burden upon return to the United States under INA 101(a)(13)(C).)

Ninth Circuit

ADMISSIBILITY - RETURNING LAWFUL PERMANENT RESIDENT - RETROACTIVITY - IIRAIRA DEFINITION OF "SEEKING ADMISSION" DOES NOT APPLY RETROACTIVELY TO GUILTY PLEA PREDATING APRIL 1, 1997
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).

Other

ADMISSION - RETURNING LPRs - BURDEN OF PROOF
INA 101(a)(13)(A) subjects an LPR to the grounds of inadmissibility if the foreign national engaged in illegal activity after having departed the United States. The Second, Sixth and Ninth Circuits have put the burden on the government to prove the ground of inadmissibility. See, e.g., Matadin v. Mukasey, 546 F.3d 85 (2d Cir. 2008); Hana v. Gonzales, 400 F.3d 472, 476 (6th Cir. 2005) ("Our task in this case ... is to determine whether we are compelled to conclude that, contrary to the Board's finding, the record does not contain clear, unequivocal, and convincing evidence that [the petitioner] abandoned her LPR status in the United States."); Khodagholian v. Ashcroft, 335 F.3d 1003, 1006 (9th Cir. 2003). The Attorney General, in a footnote in Matter of Silva-Trevino, assumes a different standard, but fails to distinguish or, even discuss, any of these cases. The circuit courts cite to pre-IIRAIRA BIA decisions such as Matter of Becera- Miranda, 12 I. & N. Dec. 358 (BIA 1967) and Matter of Kane, 15 I. & N. Dec. 258, 264 (BIA 1975). There are older cases that can be read to suggest the requirement is constitutional. See, e.g., Chew v. Rogers, 257 F.2d 607 (D.C. Cir. 1958). Thanks to Dan Kesselbrenner.

BURDEN OF PROOF - RETURNING LPR - ABANDONMENT
The Second, Sixth and Ninth Circuits have put the burden on the government to prove the ground of inadmissibility. See, e.g., Matadin v. Mukasey, 546 F.3d 85 (2d Cir. 2008); Hana v. Gonzales, 400 F.3d 472, 476 (6th Cir.2005) ("Our task in this case ... is to determine whether we are compelled to conclude that, contrary to the Board's finding, the record does not contain clear, unequivocal, and convincing evidence that [the petitioner] abandoned her LPR status in the United States."); Khodagholian v. Ashcroft, 335 F.3d 1003, 1006 (9th Cir.2003).