A lawful permanent resident (LPR) is authorized to live and work in the US on a permanent basis. An LPR is allowed automatic entry into the US after short trips abroad. However, there are instances when an LPR who is returning from a trip abroad is not automatically allowed entry but is instead considered as seeking “admission” into the US. Admission is defined as the lawful entry of an alien into the US after inspection and authorization by an immigration officer. An applicant for admission is subject to various requirements and will be denied admission if found inadmissible under any of the many grounds under INA 212(a).
Under INA 101(a)(13)(C), an LPR shall not be regarded as seeking admission into the US unless such individual: (1) has abandoned or relinquished his LPR status; (2) has been absent from the US for a continuous period in excess of 180 days; (3) has engaged in illegal activity after having departed the US; (4) has departed from the US while under legal process seeking removal of the alien from the US, including removal proceedings and extradition proceedings; (5) has committed an offense identified in INA 212(a)(2), unless since such offense the alien has been granted relief under INA 212(h) or 240A(a); or (6) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the US after inspection and authorization by an immigration officer.
For example, an alien acquired LPR status in the US in 2010 through adjustment of status. In 2011, he was convicted of theft, which is classified as a crime involving moral turpitude and a ground for inadmissibility under INA 212 (a)(2). In 2012, this alien left the US to visit his parents in the Philippines. Upon his return to the US two months later, an immigration officer at the airport discovered the 2011 theft conviction. The immigration officer considered this alien an applicant for admission and, based on the theft conviction, placed him in removal proceedings. The alien was allowed to come back to the US but he will face removal proceedings to determine his right to remain in the US.
Let’s change the facts a little bit. What if an LPR was indicted in June 2009 and left the US while his criminal proceedings were pending. In August 2009, he returned from his trip abroad. In July 2010, he was convicted. In May 2011, he was placed in removal proceedings based on his July 2010 conviction. Could this alien argue that he cannot be considered an applicant for admission under INA 101(a)(13)(C) because his criminal case was pending when he returned to the US?
These are the facts in Matter of Valenzuela-Felix, 26 I&N Dec. 53 (BIA 2012), where the Immigration Judge (IJ) found that the government should determine whether an alien is an applicant for admission at the time the alien sought entry into the US. Since the alien was not yet convicted of his crime during the time he sought entry, the IJ concluded that the government had no basis for considering him an applicant for admission.
The Board of Immigration Appeals (BIA) reversed the IJ and held that if an alien is paroled into the US for criminal prosecution, the government may rely on the results of this subsequent prosecution as basis for determining whether an alien is an applicant for admission. Thus, the government need not have all of its evidence at the time of the alien’s attempted entry to justify its determination to treat an LPR as an applicant for admission.
The BIA’s decision in Matter of Valenzuela-Felix is consistent with the recent decision of the Ninth Circuit Court of Appeals in Gonzaga-Ortega v. Holder, No. 07-74361, slip op., 11259 (9th Cir. September 14, 2012), where the Court held that how a person who presents himself for admission is to be treated is a decision that has to be made on the spot by immigration officers at the border.
These cases remind us that there’s nothing permanent with LPR status. An LPR could lose his status if he engages in criminal conduct. An LPR who is involved in criminal conduct and later travels abroad might encounter problems he would not otherwise face had he not traveled abroad. An LPR who does not travel abroad can only be charged with deportability grounds while one who travels abroad could be charged with inadmissibility grounds. There are situations when a crime is not a deportability ground but it’s an inadmissibility ground. Thus, it’s possible that an LPR cannot be placed in removal proceedings even if the government wanted to because his crime is not a deportability ground but the same crime is an inadmissibility ground that could be triggered by traveling abroad.
If you have been involved in criminal conduct, you should seek advice on how your crimes would affect your status.
