Background

• Pena, a Dominican native, was married to a U.S. citizen and obtained lawful permanent resident status in 2000 after adjustment of status following a prior passport fraud matter.
• In 2010 Pena sought to reenter the U.S. after travel abroad and gave a sworn interview; he claimed no arrest, then disclosed a 1998 passport fraud arrest after inquiry.
• Immigration authorities charged Pena as an arriving alien under INA 212(a) based on alleged fraud and ineligibility for adjustment; an IJ found him inadmissible and removable.
• The Board majority held Pena cannot be treated as seeking admission if he is a returning LPR who does not fit any 101(a)(13)(C) exception, and remanded to charge under 237(a).
• The dissent would have treated Pena as properly chargeable under 212(a) because he was an ostensible returning LPR whose status was found unlawfully obtained at removal proceedings.
• The core issue is whether a returning LPR who allegedly obtained status via fraud may be charged under 212(a) as an arriving alien.

Issues

Key Cases Cited

• Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003) (status acquired by fraud; not controlling for returning LPRs in exclusion/removal)
• Rosenberg v. Fleuti, 374 U.S. 449 (1963) (Fleuti doctrine; travel abroad by LPRs)
• Matter of Rangel, 15 I&N Dec. 789 (BIA 1976) (forum for adjudicating original admission when status obtained by fraud)
• Landon v. Plasencia, 459 U.S. 21 (1982) (due process protections for lawful permanent residents)
• Matter of Huang, 19 I&N Dec. 749 (BIA 1988) (government bears burden to show loss of LPR status when colorable returning-resident status claimed)
• Matter of Valenzuela, 26 I&N Dec. 53 (BIA 2012) (Fleuti doctrine survival and returning resident status context)
• Vartelas v. Holder, 132 S. Ct. 1479 (2012) (Supreme Court on Fleuti-related issues post-IIRIRA)