PENA

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 (BIA 2015)                              Interim Decision #3842




           Matter of Alcibiades Antonio PENA, Respondent
                              Decided June 16, 2015
                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals

  An alien returning to the United States who has been granted lawful permanent resident
status cannot be regarded as seeking an admission and may not be charged with
inadmissibility under section 212(a) of the Immigration and Nationality Act, 

(a) (2012), if he or she does not fall within any of the exceptions in
section 101(a)(13)(C) of the Act, 

(a)(13)(C) (2012). Matter of
Koloamatangi, 

 (BIA 2003), distinguished.
FOR RESPONDENT: Michele H. Kane, Esquire, Boston, Massachusetts
BEFORE: Board Panel: COLE and WENDTLAND, Board Members.                      Dissenting
Opinion: PAULEY, Board Member.
COLE, Board Member:


    In a decision dated November 14, 2011, an Immigration Judge found
the respondent inadmissible under sections 212(a)(6)(C)(i), (ii)(I),
and (7)(A)(i)(I) of the Immigration and Nationality Act, 

(a)(6)(C)(i), (ii)(I), and (7)(A)(i)(I) (2006), and ordered him
removed from the United States. The respondent has appealed from that
decision. The appeal will be sustained and the record will be remanded to
the Immigration Judge.

             I. FACTUAL AND PROCEDURAL HISTORY
    The respondent is a native and citizen of the Dominican Republic. The
record reflects that he was married to a United States citizen who filed a
visa petition on his behalf. Based on the September 9, 1996, approval of
the visa petition, the respondent filed an application for adjustment of status
on December 1, 1999. He indicated on his application that he had no prior
arrests. However, at an interview in connection with his application, the
Government notified the respondent that its records showed that he had
been charged with passport fraud by the Department of State passport
office on December 28, 1998. The respondent was asked to provide
documentation regarding the final disposition of these charges, which he
submitted. On June 5, 2000, the respondent’s application for adjustment of
status was granted and he was accorded lawful permanent resident status.

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    On May 24, 2010, the respondent sought to reenter the United States
after a trip abroad. At that time he gave a sworn statement in an interview
with immigration officials. When asked whether he had ever been arrested,
the respondent first replied that he had been arrested in 1998 for applying
for a United States passport using the birth certificate and Social Security
card of another person. When asked why he indicated that he had never
been arrested on his adjustment of status application, the respondent said he
thought he had not been arrested in relation to the passport application
because he had voluntarily appeared at the passport office after learning
from his wife that he was being investigated.1 He stated that he was
fingerprinted at the office and released. He further explained that he was
neither charged with nor convicted of passport fraud or any other offense.
    After the respondent’s interview on May 24, 2010, the Department of
Homeland Security (“DHS”) issued a notice to appear charging the
respondent as inadmissible based on his alleged fraud and prior ineligibility
for adjustment of status. At a hearing before the Immigration Judge, the
respondent denied the charges. Applying Matter of Koloamatangi, 

 (BIA 2003), the Immigration Judge determined that the
respondent had never been accorded lawful permanent resident status
because he was ineligible for adjustment of status at the time that he
applied. Specifically, the Immigration Judge found that the respondent
made a false claim to United States citizenship by knowingly purchasing an
illegally obtained birth certificate and Social Security card and that he did
not disclose his arrest in this regard in his adjustment of status application.
    Based on these findings, the Immigration Judge concluded that the
respondent’s permanent resident status was unlawfully obtained and that he
could therefore be deemed an “arriving alien” and charged under section
212(a) of the Act.2 He then found the respondent inadmissible as charged.
The Immigration Judge further found the respondent ineligible for relief
from removal and ordered him removed from the United States.

                                      II. ISSUE
   The threshold issue in this case is whether the respondent, who was
granted lawful permanent resident status, can be charged in removal
proceedings under section 212(a) of the Act as an arriving alien seeking
admission, since he does not fall within any of the exceptions listed in

1
   The evidence in the record is not entirely clear as to whether the respondent, in fact,
voluntarily presented himself at the passport office.
2
   The term “arriving alien” is defined in relevant part as “an applicant for admission
coming or attempting to come into the United States at a port-of-entry” or by certain
other means. 

, 1001.1(q) (2015).

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section 101(a)(13)(C) of the Act, 

(a)(13)(C) (2012), which
allow for an alien lawfully admitted for permanent residence to be regarded
as seeking admission to the United States.3
    We must resolve the question whether a returning lawful permanent
resident can be treated as an arriving alien based on an allegation that he
acquired his status unlawfully. We conclude that an alien returning to the
United States who has been granted lawful permanent resident status
cannot be regarded as seeking admission and may not be charged with
inadmissibility under section 212(a) of the Act if he does not fall within any
of the exceptions in section 101(a)(13)(C) of the Act.

                                   III. ANALYSIS
    The respondent argues that he has not been properly charged and that
these proceedings should have been terminated. He first contends that he
should not have been charged as an arriving alien when he returned to the
United States because his eligibility for adjustment of status had not been
determined at the time of his return. He asserts that if the DHS suspected
he was inadmissible at the time he adjusted his status, he should have been
allowed to enter as a returning resident and charged with a ground of
deportability in section 237(a) of the Act, 

(a) (2012).
    The respondent also disputes the Immigration Judge’s determination
that he “willfully misrepresented a material fact” in his application for
adjustment of status, in which he indicated that he had never been arrested.
The respondent claims that he was not aware that his contact with the
Department of State’s passport office constituted an arrest. He notes that
3
    Section 101(a)(13)(C) of the Act provides:

         An alien lawfully admitted for permanent residence in the United States shall not
       be regarded as seeking an admission into the United States for purposes of the
       immigration laws unless the alien—
           (i) has abandoned or relinquished that status,
           (ii) has been absent from the United States for a continuous period in excess of
         180 days,
           (iii) has engaged in illegal activity after having departed the United States,
           (iv) has departed from the United States while under legal process seeking
         removal of the alien from the United States, including removal proceedings under
         the Act and extradition proceedings,
           (v) has committed an offense identified in section 212(a)(2), unless since such
         offense the alien has been granted relief under section 212(h) or 240A(a), or
           (vi) is attempting to enter at a time or place other than as designated by
         immigration officers or has not been admitted to the United States after
         inspection and authorization by an immigration officer.


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his adjustment application was granted after he submitted all of the
information requested in that regard.

        A. Returning Lawful Permanent Residents as Arriving Aliens

    In deciding whether the respondent is an arriving alien, we examine the
language of the statute to determine whether Congress expressed a plain
and unambiguous intent that aliens in the respondent’s circumstances
should be considered applicants for admission under section 101(a)(13)(C)
of the Act. See Robinson v. Shell Oil Co., 

 (1997) (“Our
first step in interpreting a statute is to determine whether the language at
issue has a plain and unambiguous meaning with regard to the particular
dispute in the case.”); Matter of Valenzuela, 

(BIA 2012). Whether language is plain and unambiguous is “determined
by reference to the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.”
Robinson v. Shell Oil Co., 

.
    The plain language of section 101(a)(13)(C) indicates that an alien who
does not fall within one of the statutory exceptions and who presents a
colorable claim to lawful permanent resident status is not to be treated as
seeking an admission and should not be regarded as an arriving alien.
See also Matter of Huang, 

 (BIA 1988) (stating that
the Government has the burden to show that an alien should be deprived of
his lawful permanent resident status if he has a colorable claim to returning
resident status).
    In addition to the plain language of the statute, we find further
support for our position in our case law interpreting the “Fleuti doctrine,”
which predated section 101(a)(13)(C) of the Act. Rosenberg v. Fleuti,

 (1963).4 For example, in Matter of Rangel, 

(BIA 1976), we addressed whether a lawful permanent resident’s attempted
return constituted an “entry” where her original admission for permanent
4
   Before section 101(a)(13)(C) of the Act was enacted by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of 

 Stat. 3009-546 (“IIRIRA”), the question whether a returning lawful permanent
resident was considered to be making an “entry” was initially governed by the so-called
“reentry doctrine.” See Leal-Rodriguez v. INS, 

, 942−43 (7th Cir. 1993).
However, the Supreme Court announced a departure from the long-established concept of
“entry” under former section 101(a)(13) of the Act, 

(a)(13) (1958),
stating that a new entry did not occur when the trip outside the United States was
“innocent, casual, and brief.” Rosenberg v. Fleuti, 

. We subsequently
recognized that the Fleuti doctrine applied only to absences by aliens who had previously
been lawfully admitted for permanent residence. See Matter of Castillo-Pineda, 

 (BIA 1975); Matter of Dabiran, 

 (BIA 1970).

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residence was unlawful because it involved a false claim. In that case, we
had to decide first whether the proper forum in which to adjudicate the
lawfulness of an original admission was a deportation proceeding or an
exclusion proceeding.5 We held that the alien was not making an entry
within the meaning of the Act and, therefore, that the proper forum for
adjudicating the lawfulness of her original admission was a deportation
proceeding. 

 at 791−92.6
    The question addressed in Matter of Rangel is analogous to that now
before us, namely, whether a returning permanent resident who is suspected
of unlawfully acquiring his or her status should be placed in exclusion
proceedings (now charged with inadmissibility) or deportation proceedings
(now charged with deportability). Our decision in Rangel comported with
the Supreme Court’s recognition of the constitutional right of due process
that is owed to lawful permanent residents. See Landon v. Plasencia,

, 30−32 (1982) (citing Chew v. Colding, 

 (1953)).7
    Prior to the 1996 enactment of section 101(a)(13)(C) of the Act, the
proper forum for determining whether a lawful permanent resident had
unlawfully obtained his status would have been a deportation proceeding,
rather than an exclusion proceeding, unless he was making an “entry.”
Applying the same rationale to the current law, an alien in the respondent’s
circumstances should be charged under section 237(a) of the Act, rather
than section 212(a), unless he can be regarded as seeking an admission
under section 101(a)(13)(C).8

5
   At that time, the immigration system was bifurcated into two types of proceedings. In
general, aliens who were already present in the United States were subject to deportation
proceedings, and aliens seeking to enter the country were placed in exclusion
proceedings. The IIRIRA revised this system. Generally, both classes of aliens are now
placed into removal proceedings, but they are charged with either deportability under
section 237(a) of the Act or inadmissibility under section 212(a).
6
   We have applied this reasoning from Matter of Rangel in other contexts. For
example, in Matter of Umale, 

 (BIA 1979), we held that a petitioner’s
lawful permanent resident status cannot be attacked in visa petition proceedings based on
an allegation that such status was improperly obtained if the petitioner is residing in the
United States. In that case, we held that “until the petitioner has been found deportable
according to the procedures specified by law, she remains a lawful permanent resident of
the United States.” 

 (emphasis added).
7
   The dissent is misguided in not recognizing that the rationale of the Supreme Court
and Board case law was to confer advantages on the class of lawful permanent residents
such as the respondent.
8
   We recognize that in Matter of Collado, 

 (BIA 1998), we
determined that the Fleuti doctrine had not survived the enactment of section
101(a)(13)(C) of the Act by the IIRIRA. However, since our decision was issued, the
Supreme Court has held that at least one aspect of the Fleuti doctrine survived the
IIRIRA amendments. See Vartelas v. Holder, 

 (2012) (holding that the
                                                                           (continued . . .)
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    In light of the plain statutory language of section 101(a)(13)(C) of the
Act and the above-mentioned decisions of the Supreme Court and the
Board, we believe that the long-established principles regarding the
constitutional rights of lawful permanent residents are equally applicable to
returning lawful permanent residents today as they were in the past.
See generally United States v. Texas, 

 (1993) (stating that
statutes are to be read with a presumption that favors the retention of
familiar principles, except when a contrary purpose is evident). Therefore,
we conclude that a returning lawful permanent resident who does not fall
within one of the exceptions in section 101(a)(13)(C) of the Act cannot be
regarded as seeking admission to the United States.

                         B. Application to the Respondent

    The Immigration Judge found that the respondent was never “lawfully
admitted” as a permanent resident because he had obtained his status
through fraud. He therefore concluded that the respondent could be
regarded as an arriving alien. In making this determination, he relied on
our decision in Matter of Koloamatangi, 

, where we held,
in the context of eligibility for relief, that an alien who acquired permanent
resident status through fraud or misrepresentation had never been “lawfully
admitted for permanent residence” and was therefore ineligible for
cancellation of removal under section 240A(a) of the Act, 8 U.S.C.
§ 1229b(a) (2000).9 See also Mejia-Orellana v. Gonzales, 

(1st Cir. 2007). Applying this rationale, the Immigration Judge adjudicated
the issue of the lawfulness of the respondent’s status and found that it had
been fraudulently obtained. He therefore found that the respondent was

_______________________________________
Fleuti doctrine still applies to lawful permanent resident aliens who traveled abroad after
a conviction that predated the IIRIRA). The extent to which Fleuti remains good law
after section 101(a)(13)(C) of the Act was adopted by the IIRIRA continues to be a
vigorously contested issue. The Board and some Federal courts have considered the
question whether the Fleuti doctrine survived the enactment of section 101(a)(13)(C)
in the broader context of deciding whether the exceptions listed in sections
101(a)(13)(C)(i)−(vi) of the Act applied to the returning lawful permanent residents in
those cases. However, section 101(a)(13)(C) of the Act does not address or otherwise
include within its exceptions a lawful permanent resident in the respondent’s
circumstances. The resolution of this case does not implicate the larger issue of the
extent to which the Fleuti doctrine has, in fact, survived the IIRIRA.
9
   In Matter of Koloamatangi, we relied on the rationale from our prior decision in
Matter of T-, 

 (BIA, A.G. 1954). However, we note that in that case the
issue was whether the alien was returning to an unrelinquished “lawful domicile,” not
whether he had been lawfully admitted for permanent residence.

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never a lawful permanent resident and thus could be treated as an “arriving
alien.”
    The question whether a returning lawful permanent resident can be
regarded as an arriving alien and charged under section 212(a) of the Act
was not before us in Matter of Koloamatangi because the alien, who was
suspected of having procured his status by fraud, was charged with
deportability under section 237(a) of the Act. He was therefore afforded
the due process owed to him as one who “was facially and procedurally in
lawful permanent resident status.” Matter of Koloamatangi, 

. His ineligibility for the relief he sought was determined after the
Immigration Judge resolved the issue of the unlawfulness of his permanent
resident status, not prior to the commencement of proceedings. See id.;
see also Matter of Wong, 

 (BIA 1972).10 We therefore
conclude that Matter of Koloamatangi is not controlling in this case.
    Because the respondent is a lawful permanent resident who does not fall
within one of the exceptions in section 101(a)(13)(C) of the Act, he should
not have been regarded as seeking admission to the United States.
Therefore, he cannot be charged under section 212(a) of the Act,
notwithstanding any questions regarding the lawfulness of his status.
However, the DHS is not precluded from charging an alien such as the
respondent under section 237(a) of the Act. The grounds of deportability
contain a provision that is clearly applicable to an alien who allegedly
obtained his lawful permanent resident status through fraud or
misrepresentations. See section 237(a)(1)(A) of the Act (providing that
“[a]ny alien who at the time of entry or adjustment of status was within one
or more of the classes of aliens inadmissible by the law existing at such
time is deportable”); see also section 212(a)(6)(C) of the Act.
    We will remand the record to allow the Immigration Judge to address
these issues in the first instance, if necessary. If the DHS can meet its
burden of proving that the respondent is deportable as an alien who
acquired lawful permanent resident status through fraud, then in terms of
available relief from removal, the respondent will be in the same position
he would have been in if he had never obtained such status. See Matter of
Koloamatangi, 

. We express no opinion as to whether the
DHS can meet its burden in this particular case.


10
   Given our disposition in this case, we need not decide which party would bear the
burden of proving admissibility if a returning permanent resident were properly charged
under section 212(a) of the Act based on an allegation that he had unlawfully obtained his
status. See generally Matter of Rivens, 

 (BIA 2011) (noting the
“open question of who . . . bears the burden of showing admissibility, or a lack of
inadmissibility, once it has been determined that an alien is an applicant for admission”).

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                             IV. CONCLUSION
    We conclude that the respondent, a lawful permanent resident who does
not fall within one of the exceptions in section 101(a)(13)(C) of the Act,
cannot be regarded as an arriving alien. Therefore, the charges brought by
the DHS under section 212(a) of the Act should not have been sustained.
Accordingly, we will sustain the respondent’s appeal and remand the record
to give the DHS an opportunity to properly charge him under section 237(a)
of the Act. If necessary, the Immigration Judge may then determine
whether the respondent lawfully obtained his permanent resident status and
allow him to apply for any relief from removal for which he may be
eligible.
    ORDER: The respondent’s appeal is sustained.
    FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.


DISSENTING OPINION: Roger A. Pauley, Board Member
    I believe that the respondent was properly charged under section 212(a)
of the Immigration and Nationality Act, 

(a) (2012). As an
ostensible returning lawful permanent resident, he did not need to be
charged under section 237(a) of the Act, 

(a) (2012),
because the Immigration Judge found at his removal proceeding that he was
never lawfully admitted for permanent residence.
    The majority arrives at the opposite result by, in effect, limiting our
decision in Matter of Koloamatangi, 

 (BIA 2003), where
we held that an alien who acquired permanent resident status through fraud
or misrepresentation has never been “lawfully admitted for permanent
residence,” to the context in which an ostensible lawful permanent resident
seeks relief. The majority therefore finds that Matter of Koloamatangi
does not apply to the situation in which a returning lawful permanent
resident is found to have wrongly obtained his status during removal
proceedings. The majority explains that such a person must be charged
under section 237(a) of the Act because he does not fall into any of the six
enumerated categories at section 101(a)(13)(C) of the Act, 

(a)(13)(C) (2012), allowing for a returning lawful permanent
resident to be charged as an applicant for admission. I disagree.
    The majority’s position embodies a stark violation of the bedrock
principle of statutory construction that a term, in this case “lawfully
admitted for permanent residence,” appearing in the same statute should be
given an identical construction and not be accorded two different meanings.
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In that regard, we have consistently held, and the courts of appeals
have uniformly endorsed our interpretation, that the phrase “lawfully
admitted for permanent residence” means that the alien must have
been in substantive compliance with the immigration laws. See Injeti
v. U.S. Citizenship & Imm. Serv., 

 (4th Cir. 2013);
Estrada-Ramos v. Holder, 

 (7th Cir. 2010); Kyong Ho Shin
v. Holder, 

 (9th Cir. 2010); Walker v. Holder, 

 (1st Cir. 2009); De La Rosa v. U.S. Dep’t of Homeland Sec., 

 (2d Cir. 2007); Savoury v. U.S. Att’y Gen., 

 (11th Cir.
2006); Arellano-Garcia v. Gonzales, 

 (8th Cir. 2005); Matter
of Koloamatangi, 

. Moreover, this understanding long
preceded the 1996 enactment of section 101(a)(20) of the Act. See, e.g.,
Monet v. INS, 

 (9th Cir. 1986); Matter of Longstaff, 

 (5th Cir. 1983); Matter of T-, 

 (BIA, A.G. 1954).
    Significantly, Congress chose to use the same term in section
101(a)(13)(C) of the Act, which is applicable to returning lawful permanent
residents, demonstrating that Congress intended that only lawful permanent
residents with valid status are subject to its regime. It would have been
easy for Congress to preface section 101(a)(13)(C) of the Act with language
asserting the construction that the majority would engraft on that section,
such as that an alien “admitted for lawful permanent residence, whether or
not such status was rightly conferred,” shall not be regarded as seeking
admission unless one or more of the six enumerated exceptions applies.
However, by using the very term it defined in section 101(a)(20) of the Act
(indeed, the same subsection!), Congress clearly expressed its intent that
the definition therein applies. Thus, the Immigration Judge correctly
determined that Matter of Koloamatangi governs. The fact that a different
regime existed prior to the 1996 enactment of section 101(a)(13)(C) of the
Act is irrelevant where we have found that Congress intended to abandon
that regime for returning lawful permanent residents in significant respects.
See Matter of Collado, 

 (BIA 1998).
    The majority maintains that the respondent was entitled to be treated as
a lawful permanent resident for entry purposes because at the time he
arrived at the point of entry, it had not yet been determined that his
permanent resident status had been improperly conferred, and none of the
six exceptions in section 101(a)(13)(C) of the Act was implicated. Once
again, I disagree. Just as we determined in Matter of Valenzuela-Felix,

 (BIA 2012), the ensuing removal proceeding is the proper
forum in which to make a determination whether the respondent was
correctly charged under section 212(a) of the Act.
    Fortunately, not much damage will result from the majority’s erroneous
decision. As the majority opinion observes, the Department of Homeland
Security (“DHS”) may charge a returning lawful permanent resident who it
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believes has wrongly obtained his or her status as having been inadmissible
at the time of adjustment of status. See section 237(a)(1)(A) of the Act. If
such charge is upheld, Matter of Koloamatangi will apply to render the
alien ineligible for relief to the extent relief is sought based on lawful
permanent resident status. However, the majority decision does have a
modicum of practical import because an alien charged under section 237(a)
(as opposed to section 212(a)) may seek a waiver of deportability under
section 237(a)(1)(H) of the Act, if he or she is subject to removal as having
been inadmissible at the time of admission because of fraud. That section
contains more generous provisions allowing for such a waiver than does the
comparable provision at section 212(i) of the Act.1
    To the extent that the majority confers an advantage on the class of
lawful permanent residents who wrongly obtained their status—as
compared to the class of lawful permanent residents who obtained their
status rightfully but are charged as applicants for admission under section
101(a)(13)(C)—I find it an unlikely expression of congressional intent.
The former class, which includes the respondent in this case, generally
represents a less deserving group inasmuch as they ordinarily will have
obtained their status by fraud or other wrongful means.2
    For the foregoing reasons, I would find that the Immigration Judge
correctly applied Matter of Koloamatangi to sustain the charges under
section 212(a) of the Act.




1
    For example, section 212(i) of the Act generally requires a showing of “extreme
hardship” to a qualifying relative, whereas section 237(a)(1)(H) of the Act contains no
such requirement.
2
    Indeed, the majority decision seemingly requires that even an alien who purchased a
fraudulent green card, but was not convicted of that offense, is entitled to be charged
under section 237(a) of the Act. I recognize that, on occasion, a lawful permanent
resident who obtained status wrongly may not be at fault, for example, where a child
obtained status derivatively and was unaware of his or her parent’s wrongful acts in
obtaining lawful permanent resident status, or where the DHS erred in conferring lawful
permanent resident status despite full disclosure by an alien of facts that should have led
to the denial of adjustment. But such instances are relatively rare and, in any event, such
an alien has nevertheless benefited from a status wrongly conferred.

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