BIA HOLDS THAT A RETURNING LAWFUL PERMANENT RESIDENT CANNOT BE REGARDED AS SEEKING ADMISSION AND TREATED AS AN ARRIVING ALIEN AND THUS MAY NOT BE CHARGED WITH INADMISSABILITY UNDER INA § 212(a) IF HE OR SHE DOES NOT FALL WITHIN ANY OF THE EXCEPTIONS IN INA § 101(a)(13)(C).
On June 16, 2015, the Board of Immigration Appeals (BIA or Board) decided whether a returning lawful permanent resident (LPR) who is suspected of unlawfully acquiring that status should be charged with inadmissibility or deportability. The Board initially looked at whether Congress intended those in respondent’s circumstances to be considered applicants for admission under INA § 101(a)(13)(C) and found the plain language of the statute indicated that one who does not fall within one of that section’s exceptions and who presents a colorable claim to LPR status is not to be treated as an arriving alien. Therefore, the BIA held that respondent cannot be charged with inadmissibility under INA § 212(a) regardless of questions regarding the lawfulness of his status. However, the opinion held, DHS can recharge respondent with deportability under INA § 237(a) and the Board thus reminded the record to the Immigration Judge. Matter of Pena, 26 I & N Dec. 613 (BIA 2015).
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