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BIA: LPR seeks admission if caught engaging in illegal activity at port of entry

Guest Blogger Tamikka Pate

Recently, the Board of Immigration Appeals held that a lawful permanent resident of the United States may be treated as an applicant for admission, pursuant to INA § 101(a)(13)(C)(iii), in removal proceedings if the Department of Homeland Security (DHS) proves by clear and convincing evidence that the returning resident engaged in “illegal activity” at a United States port of entry. Matter of Martinez, 25 I&N Dec. 845, 848 (BIA 2012).

Respondent Ignacio Guzman Martinez, a native and citizen of Mexico, has been a lawful permanent resident of the United States since 2004. Id. at 845. After returning from Mexico in mid-July 2005, Martinez arrived at the San Ysidro, California, port of entry for inspection. Id. There, immigration officers determined that Martinez was attempting to bring an undocumented juvenile alien into the United States in violation of § 212(a)(6)(E)(i) of the INA, as an alien who “at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” Id. at 845-46. Accordingly, Martinez was paroled into the United States and removal proceedings were initiated charging Martinez as inadmissible. Id.

The immigration judge, after several evidentiary hearings, dismissed the charge and terminated the removal proceedings “without prejudice,” concluding that the notice to appear had been “improvidently issued” by the DHS. In particular, the IJ determined that the decision to charge the respondent with inadmissibility was inconsistent with § 101(a)(13)(C) of the Act because § 101(a)(13)(C) establishes a rebuttable presumption that returning lawful permanent residents “shall not be regarded as seeking an admission into the United States for purposes of the immigration laws.” Id. at 846.

On appeal, DHS argued that the notice to appear was not improvidently issued and that the evidence was sufficient to rebut the statutory presumption against treating a returning lawful permanent resident as an applicant for admission. Id. The presumption may be rebutted if the DHS establishes by clear and convincing evidence that one or more of six statutory exceptions apply. Id. (citing Matter of Rivens, 25 I&N Dec. 623 (BIA 2011)).

DHS then invoked the exception in § 101(a)(13)(C)(iii) of the Act, which authorizes a returning lawful permanent resident to be regarded as an applicant for admission if he “has engaged in illegal activity after having departed the United States.” Id. Subsequently, the Board discussed the various meanings and scope of “illegal activity,” but ultimately decided that it “need not define the outer limits of the term in this case” because there is no “serious dispute that the conduct alleged here – knowingly attempting to bring an undocumented alien into the United States – is ‘illegal activity’ under any reasonable construction.” Id. at 846-47.

The Board acknowledged the immigration judge’s reading of § 101(a)(13)(C)(iii) as applying only to illegal activity engaged in abroad or on the high seas, but not to activity committed during inspection at a United States port of entry; however, the Board disagreed. The Board stated that there is no dispute that illegal activity committed by a returning lawful permanent resident after his lawful entry into the United States would not trigger application of § 101(a)(13)(C)(iii), because in such a case the offending conduct would have occurred while the lawful permanent resident was “in and admitted” to the United States, thereby making the lawful permanent resident subject to deportation. Id.

But the “same cannot be said of a returning lawful permanent resident who engages in illegal activity while undergoing inspection at a port of entry” the Board determined, because although the illegal activity alleged here may have been discovered at the port of entry, that does not mean it began there. Id. at 848. Thus, according to the Board, the most natural reading of § 101(a)(13)(C)(iii) is that it “covers any alien who engages in illegal activity after departing from the United States but before reentering after inspection.” Id.


Tamikka Pate is a third-year student at Capital University Law School with an interest in racial justice.

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