Where LPR who is not deportable briefly leaves the United States, it would arguably violate Substantive Due Process and Equal Protection to consider him or her an arriving alien, and thus inadmissible, and the court must seek a construction of INA 101(a)(13)(C)(v) which avoids these constitutional problems. Note that INA 101(a)(13)(C)(v) contains no exceptions for people granted waivers under INA 212(c), 212(i), or former suspension of deportation under 244.

Belliss, Consequences Of A Court-Martial Conviction For United States Service Members Who Are Not United States Citizens, 51 NAVAL L. REV. 53, 57 n.23 (2005) ("Whether the finding of guilty and imposition of punishment by a summary court-martial officer against an accused amounts to a conviction for immigration purposes is likely answered in the negative. See Middendorf v. Henry, 425 U.S. 25, 40-42 (1976).

United States v. Berumen, __ M.J. __ (C.M.A.

Mutascu v. Gonzales, __ F.3d __ (5th Cir. Apr. 3, 2006) (California conviction of petty theft with a prior, in violation of Penal Code 666, with one-year sentence imposed is an aggravated felony theft offense), rejecting United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002).
http://caselaw.lp.findlaw.com/data2/circs/5th/0460708cv0p.pdf

United States v. Pintado-Isiordia, ___ F.3d ___ (9th Cir. May 26, 2006) (per curiam) (because record unclear whether district court relied on categorical approach, or modified categorical approach, defendants sentence for illegal reentry was vacated and remanded for district court determination as to whether prior conviction for assault with a firearm qualifies as a "crime of violence" under either approach).
http://caselaw.lp.findlaw.com/data2/circs/9th/0550489p.pdf

Banda Oritz v. Gonzalez, __ F.3d __ (5th Cir. Mar. 28, 2006) (grant of a motion to reopen does not automatically stay a period of voluntary departure; noncitizen must additionally request stay or reinstatement of voluntary departure period), disagreeing with Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir.2005); Kanivets v. Gonzales, 424 F.3d 330 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir.2005).

Lawrence v. Gonzales, 446 F.3d 221 (1st Cir. May 5, 2006) (where pre-IIRAIRA conviction was vacated on a basis of legal invalidity, but replaced with a new plea after IIRAIRA that also triggers removal, a waiver under INA 212(c) is unavailable where the new plea was not entered nunc pro tunc).

Avendano-Espejo v. Department of Homeland Sec., __ F.3d __ (2d Cir. May 11, 2006) (court lacks jurisdiction to review discretionary denial of INA 212(c) relief).
http://caselaw.lp.findlaw.com/data2/circs/2nd/0340921p.pdf

Savoury v. United States Atty Gen., __ F.3d __ (11th Cir. May 25, 2006) (noncitizen who was inadmissible at time of adjustment of status, but was allowed to adjust status by mistake, is not a noncitizen lawfully admitted to the United States for purposes of demonstrating eligibility for relief under former INA 212(c)).
http://caselaw.lp.findlaw.com/data2/circs/11th/0510966p.pdf

Matter of G-A-, 7 I. & N. Dec. 274 (BIA 1956) (noncitizen in deportation proceedings allowed to apply for INA 212(c) relief where noncitizen had traveled out of the United States after conviction but before the deportation proceedings, on the theory that the INS should not have admitted the person after the conviction without a 212(c) waiver and that an IJ can grant the 212(c) waiver nunc pro tunc to the prior post-conviction/pre-deportation proceedings entry).  See also, Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971).