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.  

Stay of Removal Granted in 8 Days!

My client is a citizen of the People's Republic of China.  He was inspected and paroled into the United States over 15 years ago, however, the following year he was ordered removed to China by an Immigration Judge.  He never departed the United States.  He has no criminal record, and his wife and children are all Lawful Permanent Residents of the United States.  He is elderly, and has a medical condition.

My client was recently encountered by USICE and taken into custody, at which point I was retained.  Because of the old removal order, USICE was prepared to remove my client from the United States immediately.  I prepared an Application for a Stay of Removal, and gathered documentation to support the Application, showing that my client merited the exercise of prosecutorial discretion because of his long residence in the United States, his lack of a criminal record, his family in the United States, and his medical condition.  I then filed the request with USICE, and eight days later received a call that the Stay of Removal was approved. My client was released from custody approximately two hours later, and was reunited with his family!

Order of Removal Reopened & Terminated, Client Now Eligible to Apply for Green Card

My client is a native of Ukraine and citizen of Israel.  He was lawfully inspected and admitted to the United States, but unfortunately overstayed his status.  He has no criminal involvement.  He was placed into removal proceedings, however because he never received notice of the hearing before the Immigration Judge, he did not appear before the Court on the day of his hearing.  The Immigration Judge ordered him removed to Israel in absentia (in his absence). 

My client then hired an attorney to reopen his proceeding.  Unfortunately the motion prepared by the previous attorney did not advise the Court of any new facts, of any relief available, and was not accompanied by any applications seeking relief.  The Department of Homeland Security opposed the motion, and the Immigration Judge denied the motion.  The attorney then filed a motion to reconsider, which was again deficient, and was again opposed and denied.  The attorney did not file an appeal with the Board of Immigration Appeals.

My client then met and fell in love with a United States citizen, and after an appropriate courtship period, they were married.  The couple consulted with yet another attorney, who advised them that nothing could be done in this case.

The couple then consulted with and retained me.  I prepared and filed a Form I-130, Petition for Alien Relative, on their behalf, which was filed with USCIS and approved.  I then worked with the Office of Chief Counsel on a Joint Motion to Rescind and Reopen the removal order, along with a Joint Motion to Terminate the removal order.  I prepared a legal brief in support of the Joint Motions, supported by a voluminous exhibits package.  The two Joint Motions were filed with the

Immigration Court

, and one week later, we received a decision from the Immigration Judge granting both motions.  The removal order has now been terminated, and the client is eligible to apply for a green card!