In re Collado
| Decision Date | 26 February 1998 |
| Docket Number | Interim Decision #3333 |
| Parties | In re Jesus COLLADO-Munoz, Respondent File A31 021 716 - York |
| Court | U.S. DOJ Board of Immigration Appeals |
The Immigration and Naturalization Service appeals from a May 21, 1997, decision of an Immigration Judge that ordered terminated, without prejudice, the present removal proceedings against the respondent.2 The dispositive issue in the Immigration Judge's opinion was whether the doctrine of "brief, casual, and innocent" departure from the United States first enunciated by the United States Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963), has survived the enactment of section 301(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-575 ("IIRIRA").3 The Immigration Judge concluded that the Fleuti doctrine was applicable to this case and ordered the proceedings terminated. The Immigration Judge's decision will be vacated, and the record remanded for further proceedings.
The respondent, a native and citizen of the Dominican Republic, is a lawful permanent resident of the United States and has been for over 25 years. On April 7, 1997, upon his return to the United States after a 2-week visit to his native country, he was charged by the Service with inadmissibility under section 212(a)(2) of the Immigration and Nationality Act (), based on a 1974 conviction for sexual abuse of a minor. At the hearing before the Immigration Judge, and in the Immigration Judge's decision, the focus was on the continuing applicability of the Fleuti doctrine and on the character of the respondent's departure. Although the respondent acknowledged that he had been convicted on July 24, 1974, of sexual abuse of a minor in the second degree and received "three years probation," the issue of whether or not he had committed an offense identified in section 212(a)(2) of the Act was not specifically addressed and resolved.
Rather, the Immigration Judge, relying on Rosenberg v. Fleuti, supra, terminated removal proceedings, determining that the respondent had made only a "brief, casual, and innocent" departure from the United States. The Service appealed, arguing that the respondent was properly charged as an arriving alien who was inadmissible despite his lawful permanent resident status, because, applying section 101(a)(13)(C)(v) of the Act (to be codified at 8 U.S.C. § 1101(a)(13)(C)(v)), the respondent must be regarded as "seeking an admission" into the United States.
The issue before us in this case is whether the Immigration Judge correctly decided that the Fleuti doctrine permits or requires the admission into the United States of a returning lawful permanent resident who falls within the definition of section 101(a)(13)(C)(v) of the Act, if the lawful permanent resident's departure from the United States was "brief, casual, and innocent." Or, stated otherwise, whether a lawful permanent resident described in sections 101(a)(13)(C)(i)-(vi) of the Act is to be regarded as "seeking an admission into the United States for purposes of the immigration laws," without further inquiry into the nature and circumstances of a departure from and return to this country.
Shortly before the respondent's return to the United States, the laws of this country concerning entry were changed with the enactment of the IIRIRA. Previous to this enactment, "entry" was defined at section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13)(1994), as follows:
The term "entry" means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary . . . .
This definition was the one considered by the Supreme Court in Rosenberg v. Fleuti, supra. However, by the time of the respondent's return to the United States on April 7, 1997, this definition of entry was no longer in effect. Instead, section 101(a)(13) of the Act was effectively amended as of April 1, 1997, to define the terms "admission" and "admitted." Section 101(a)(13), as amended by the IIRIRA, now provides, in relevant part:
(A) The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
. . . .
(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.
Section 101(a)(13) of the Act is a definitional provision that has been completely revised by Congress through the IIRIRA. Section
301(a) of the IIRIRA amended section 101(a)(13) of the Act by entirely supplanting the definition of "entry" with definitions for the terms "admission" and "admitted." Section 101(a)(13)(C) specifically addresses the treatment of lawful permanent residents in the restructured statutory scheme. We read that section, in keeping with its definitional character, to create a dichotomy. It specifies a general rule that an alien lawfully admitted for permanent residence is not regarded as seeking admission. It then specifies the exceptions to the general rule, specifically, the circumstances under which a lawful permanent resident will be regarded as seeking an admission. In our judgment, it would be inconsistent with the definitional nature of this provision to read it, as does the dissent, to create either a third category or an undefined second category of lawful permanent residents who may or may not be regarded as seeking an admission, depending on a wholly unspecified set of criteria that, presumably, would be developed by case-by-case adjudication.4 Rather, we find that the plain language of this definitional provision compels the finding that, under section 101(a)(13)(C)(v) of the Act, a lawful permanent resident who has committed an offense identified in section 212(a)(2), who has not since such time been granted relief under sections 212(h) or 240A(a) (to be codified at 8 U.S.C. § 1250a(a)), who departs the United States and returns, shall be regarded as seeking an admission into the United States despite his lawful permanent resident status.5
Moreover, we do not find that a contrary result is mandated by the Supreme Court's decision in Rosenberg v. Fleuti, supra. Aside from the fact that neither an Immigration Judge nor this Board has the authority to rule upon the constitutionality of the laws we administer, the amended section 101(a)(13)(C) of the Act no longer defines the term "entry" and no longer contains the term "intended," which formed the central basis for the Supreme Court's reasoning in Rosenberg v. Fleuti. Instead, the amended section specifically defines the circumstances under which a returning lawful permanent resident will be deemed to be seeking admission into the United States. Thus, we find that the Fleuti doctrine, with its origins in the no longer existent definition of "entry" in the Act, does not survive the enactment of the IIRIRA as a judicial doctrine. Rather, Congress has now amended the law to expressly preserve some, but not
all, of the Fleuti doctrine, as that doctrine developed...
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