Returning LPRs - Are They Applicants for Admission?

When a Lawful Permanent Resident (LPR) departs the United States and subsequently seeks to re-enter the United States, he or she will not be regarded as an applicant for admission.  INA § 101(a)(13)(C).  However, there are (of course) exceptions to that rule. 

One of those exceptions is where an LPR "has engaged in illegal actvity after having departed the United States."  This language, found in the statute, is somewhat vague and raises two interesting questions: 1) what constitutes "illegal activity"? and, 2) where an LPR is attempting to engage in illegal activity on both sides of the border, at what point does the LPR re-enter the United States?  This second question is a critical one, because if the LPR is regarded as seeking admission to the United States, he will be charged as inadmissible to the United States.  If, however, the LPR is not regarded as an applicant for admission, he will be charged as removable from the United States, and the burden of proof to remove the LPR will be much higher on the government.

The Board of Immigration Appeals (BIA) recently took up this second question in its decision in Matter of Guzman Martinez, 25 I. & N. Dec. 845 (BIA 2012).  In that case, the Respondent was a native and citizen of Mexico, and an LPR of the United States.  He departed the United States and entered Mexico, and later presented himself for inspection at the San Ysidro, California port of entry.  During inspection, the Department of Homeland Security alleged that he was attempting to smuggle in an undocumented alien.  DHS issued a Notice to Appear, and charged him with being inadmissible to the United States (not removable as a returning LPR). 

The Respondent argued before the Immigration Court, and the Immigration Judge agreed, that he was improperly charged as being inadmissible, and that he should have been charged as being removable, because his illegal activity occurred as he was "crossing the border" back into the United States.  The Immigration Judge dismissed the charges of inadmissibility and terminated the proceedings against the Responsent.  DHS appealed the Immigration Judge's decision to the BIA.

The BIA found that "[w]hen a lawful permanent resident voluntarily leaves the United States, he remains outside this country for immigration purposes until he completes the inspection process upon return.  An alien does not meaningfully 'enter' the United States simply by setting foot in a port of entry."  Therefore, the Respondent was properly charged as being inadmissible to the United States, and the BIA remanded the case back to the Immigration Judge for further proceedings.