25 I. & N. Dec. 845
BIA2012Background
- Guzman Martinez, a lawful permanent resident since 2004, was stopped at San Ysidro on July 31, 2005 for attempting to bring in an undocumented juvenile alien.
- DHS charged him with inadmissibility under INA §212(a)(6)(E)(i) for knowingly aiding entry in violation of law.
- An Immigration Judge dismissed the charge as improvidently issued and terminated proceedings without prejudice, citing the §101(a)(13)(C) presumption against treating a returning LPR as seeking admission.
- DHS appealed, arguing the notice to appear was proper and that the respondent could be treated as an applicant for admission.
- The Board of Immigration Appeals reversed, reinstated removal proceedings, and remanded for findings on whether Guzman Martinez engaged in illegal activity, applying §101(a)(13)(C)(iii).
- The court concluded that a returning LPR can be treated as an applicant for admission if he knowingly engages in illegal activity at the port of entry prior to reentry, and remanded for further proceedings to determine whether such activity occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §101(a)(13)(C)(iii) apply to illegal activity at a port of entry during inspection? | DHS: yes, post-departure illegal activity includes port-entry conduct. | Guzman Martinez: the provision applies only to activity after leaving and before reentry in contexts outside the port entry itself. | Yes, the Board adopts that reading and remands for proof. |
| What constitutes 'illegal activity' under §101(a)(13)(C)(iii)? | DHS: encompasses criminal activity; must be proven by clear and convincing evidence. | Respondent: activity here (alien smuggling) is illegal; no dispute on illegality. | Illegal activity is understood to mean criminal activity; issue remains to be proven by clear and convincing evidence. |
| Is the evidence sufficient to establish that Guzman Martinez engaged in illegal activity at the port of entry? | DHS: must prove via clear and convincing evidence that the port-entry conduct occurred. | IJ found insufficient basis in the record; remand required. | Remanded for proceedings to determine whether clear and convincing evidence supports the port-entry illegal activity. |
| Does the IJ’s conclusion about the timing of the illegal activity affect the applicability of §101(a)(13)(C)(iii)? | DHS: timing aligns with post-departure, pre-reentry activity. | IJ reasoned activity occurred at border crossing, not after departure. | Board rejects IJ's timing bias and clarifies port-entry activity falls within the statute. |
Key Cases Cited
- Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (establishes six statutory exceptions to the presumption against admission)
- Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011) (discusses the scope of unlawful activity for returning LPRs)
- Matter of Patel, 20 I&N Dec. 368 (BIA 1991) (addresses when an LPR is not meaningfully admitted at port entry)
- Dolan v. U.S. Postal Serv., 546 U.S. 481 (Sup. Ct. 2006) (contextual approach to reading statutory terms)
- Rosenberg v. Fleuti, 374 U.S. 449 (Sup. Ct. 1963) (historical basis for the Fleuti doctrine regarding returning LPRs)