Cite as 25 I&N Dec. 845 (BIA 2012) Interim Decision #3759
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Matter of Ignacio GUZMAN MARTINEZ, Respondent
Decided June 29, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Pursuant to section 101(a)(13)(C)(iii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(13)(C)(iii) (2006), a lawful permanent resident of the United States may
be treated as an applicant for admission in removal proceedings if the Department
of Homeland Security proves by clear and convincing evidence that the returning resident
engaged in “illegal activity” at a United States port of entry.
FOR RESPONDENT: Arnold S. Jaffe, Esquire, Santa Barbara, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Tasha Gailys, Assistant Chief
Counsel
BEFORE: Board Panel: COLE, PAULEY, and GREER, Board Members.
GREER, Board Member:
In a decision dated February 14, 2011, an Immigration Judge terminated
removal proceedings against the respondent, concluding that the Department
of Homeland Security (“DHS”) had improperly charged the respondent with
inadmissibility to the United States based on alleged illegal activity discovered
at a port of entry. The DHS has appealed from that decision. The appeal will
be sustained, the proceedings will be reinstated, and the record will
be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Mexico, has been a lawful
permanent resident of the United States since 2004. On July 31, 2005, after
visiting Mexico, he presented himself for inspection at the San Ysidro,
California, port of entry. During the inspection process, immigration officers
concluded that the respondent was attempting to bring an undocumented
juvenile alien into the United States in violation of law. Accordingly, the
officers paroled the respondent into the United States and initiated
removal proceedings by filing a notice to appear, which charged him withCite as 25 I&N Dec. 845 (BIA 2012) Interim Decision #3759
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inadmissibility under section 212(a)(6)(E)(i) of the Act, 8 U.S.C.
§ 1182(a)(6)(E)(i) (2000), 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.”
After several evidentiary hearings, the Immigration Judge dismissed
the charge and terminated the removal proceedings “without prejudice,”
concluding that the notice to appear had been “improvidently issued” by the
DHS. According to the Immigration Judge, the DHS’s decision to charge the
respondent with inadmissibility was inconsistent with section 101(a)(13)(C)
of the Act, 8 U.S.C. § 1101(a)(13)(C) (2006), which 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.” On appeal, the DHS counters that the notice to appear was not
improvidently issued and that the evidence in this case is sufficient to rebut the
statutory presumption against treating a returning lawful permanent resident
as an applicant for admission.
II. ANALYSIS
As the Immigration Judge determined, section 101(a)(13)(C) of the Act
establishes a presumption against treating a returning lawful permanent
resident as an applicant for admission in removal proceedings. That
presumption may be rebutted, however, if the DHS establishes by clear and
convincing evidence that one or more of six statutory exceptions applies.
Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). Here, the DHS invokes the
exception in section 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.”
The term “illegal activity” is not defined in the Act. As a matter
of semantics, it is possible to interpret the term broadly to encompass any
activity that is “[f]orbidden by law” or “unlawful.” Black’s Law Dictionary
763 (8th ed. 1999) (defining the term “illegal”). On the other hand, we are
mindful of the Supreme Court’s caveat that “[a] word in a statute may or may
not extend to the outer limits of its definitional possibilities. Interpretation
of a word or phrase depends upon reading the whole statutory text, considering
the purpose and context of the statute, and consulting any precedents
or authorities that inform the analysis.” Dolan v. U.S. Postal Serv., 546 U.S.
481, 486 (2006). A contextual reading of section 101(a)(13)(C)(iii) suggestsCite as 25 I&N Dec. 845 (BIA 2012) Interim Decision #3759
1 Section 101(a)(13)(C)(iii) was enacted pursuant to section 301(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L.
No. 104-208, 110 Stat. 3009-546, 3009-575, but its language is derived verbatim from the
text of an earlier House bill. H.R. 2202, 104th Cong. § 301(a) (1996). The report of the
House Judiciary Committee issued in conjunction with H.R. 2202 reflects that the
amendment to section 101(a)(13) was intended to “preserve[] a portion of the Fleuti doctrine
by stating that a returning lawful permanent resident shall not be regarded as seeking
admission unless the alien . . . has engaged in criminal activity after having left the U.S.”
H.R. Rep. No. 104-469, pt. 1, at 225 (1996) (emphasis added) (footnote omitted); see also
Rosenberg v. Fleuti, 374 U.S. 449 (1963).
2
In so concluding, the Immigration Judge found that the notice to appear had been
“improvidently issued.” On appeal, the DHS contends that the phrase “improvidently
issued” applies exclusively to notices to appear that are either cancelled by the Government
before jurisdiction vests with the Immigration Judge or dismissed on the Government’s
motion thereafter. See 8 C.F.R. §§ 239.2(a)(6), 1239.2(c) (2012). While the DHS raises
a valid point, it is nevertheless evident that the Immigration Judge employed the phrase
“improvidently issued” to convey nothing more than his own legal judgment that the charge
set forth in the notice to appear was incorrect.
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that Congress understood the term “illegal activity” to mean criminal activity,1
as opposed to other forms of “illegal” activity, such as torts, breaches
of contracts, or noncriminal regulatory violations. We need not define the
outer limits of the term in this case, however, 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. See sections 212(a)(6)(E)(i), 237(a)(1)(E)(i), 274(a)
of the Act, 8 U.S.C. §§ 1182(a)(6)(E)(i), 1227(a)(1)(E)(i), 1324(a) (2006).
The Immigration Judge appeared to acknowledge that attempting to bring
an undocumented alien into the United States was “illegal activity,” but he
nevertheless concluded that section 101(a)(13)(C)(iii) did not apply to the
respondent because his illegal activity did not occur after he had “departed the
United States,” but rather as he “crossed the border” back into it. In other
words, the Immigration Judge read section 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 the inspection process at a United States port of entry.2
We disagree with that interpretation.
There is no dispute that illegal activity committed by a returning lawful
permanent resident after his lawful reentry into the United States would not
trigger application of section 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 within the meaning of section
237(a) of the Act, thereby making him subject to the grounds of deportability.
Matter of Alyazji, 25 I&N Dec. 397, 406 (BIA 2011). But the same cannotCite as 25 I&N Dec. 845 (BIA 2012) Interim Decision #3759
3 A lawful permanent resident who departs the United States but evades inspection upon
return is treated as an applicant for admission pursuant to section 101(a)(13)(C)(vi) of the
Act, without regard to his commission of other “illegal activity.”
4
If a lawful permanent resident is permitted to reenter the United States after inspection
by an immigration officer but is thereafter determined to have engaged in illegal activity
before reentry, the alien may be subject to a charge of deportability under section
237(a)(1)(A) of the Act for having been inadmissible at the time of a prior entry.
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be said of a returning lawful permanent resident who engages in illegal activity
while undergoing inspection at a port of entry. When 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.3 An alien does not meaningfully “enter” the United States simply
by setting foot in a port of entry. See Matter of Patel, 20 I&N Dec. 368 (BIA
1991).4 Furthermore, although the illegal activity alleged here—alien
smuggling—may have been discovered at a port of entry, that does not mean
it began there. On the contrary, a single incident of alien smuggling may
involve a course of illegal conduct “engaged in” on both sides of the border.
Thus, in our view the most natural reading of section 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. Accordingly,
a returning lawful permanent resident who is shown by clear and convincing
evidence to have engaged in illegal activity at the port of entry (for example
by attempting to bring an undocumented alien into the United States) is in the
same position vis-à-vis section 101(a)(13)(C)(iii) as a lawful permanent
resident who engaged in illegal activity on foreign soil or the high seas. Both
are subject to charges of inadmissibility upon return.
III. CONCLUSION
In conclusion, if the DHS adduces clear and convincing evidence that the
respondent was knowingly attempting to bring an undocumented alien into the
United States in violation of law at the San Ysidro port of entry on July 31,
2005, it will thereby have established that the respondent is an applicant for
admission despite his lawful permanent resident status, in which case a charge
of inadmissibility would be appropriate. Because the Immigration Judge
incorrectly determined that the respondent could not be treated as an applicant
for admission by virtue of conduct committed at the port of entry, he did not
decide whether the evidence was sufficient to establish that the respondent did,
in fact, engage in “illegal activity.” The record will be remanded for further
proceedings with respect to that question and for the entry of a new decision.Cite as 25 I&N Dec. 845 (BIA 2012) Interim Decision #3759
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ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
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.