By Gary Endelman
It has been a long time since the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) introduced the concept of “admission” now codified at INA Section 101(a)(13)(C) yet arguments have continued to rage as to what it means and who has the burden of proof when it comes to a returning permanent resident. Now, at long last, the Board of Immigration Appeals has brought clarity to this muddled picture, or so it seems. If the United States Supreme Court upsets this transquility, those charged with the responsibility of advising clients may once again find themselves searching for answers.
Before IIRIRA, the INA defined “entry” in these terms: ” any coming of an alien into the United States…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…his departure to a foreign port or place…was not intended…” 8 USC Section 1101(a)(13). This is, to put it charitably, not the most artful or easily digestible drafting so it was not clear what Congress meant. Happily, the Supreme Court told us in Rosenberg v. Fleuti, 374 US 449 462 (1963) which held that a lawful permanent resident was not making an entry if his or her departure was “brief, casual and innocent.” Comes along April 1, 1997 and “entry” a la Fleuti is no longer, replaced now by IIRIRA Section 101(a)(13)(C) “admission” pursuant to which an LPR shall not be regarded as seeking admission “unless” he or she met 6 specific criteria, including having been absent for a continuous period in excess of 180 days or having abandoned or relinquished LPR status while away. Not content to stop there, IIRIRA also introduced INA 240(c)(2), 8 USC Section 1229a(c)(2) that requires an applicant for admission to prove by “clear and convincing evidence” that he or she is “lawfully present in the US pursuant to a prior admission.” The burden is on the applicant for admission to demonstrate “clearly and beyond doubt” that he or she is not inadmissible. At the same time, IIRIRA also lowered the burden on the government as the charging party in removal proceedings to establish deportability b y “clear and convincing” evidence replacing the “clear, unequivocal and convincing” evidence test articulated by the Supreme Court in Woodby v. INS, 385 US 276,286 (1966). Following hard on the heels of IIRIRA, which did not explicitly abrogate Fleuti, the Board of Immigration Appeals held in Matter of Collado-Munoz, 21 I&N Dec.1061, 1065(BIA 1997) 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 judicial doctrine.” Farewell Fleuti!
Has the burden of proof shifted after IIRIRA fora an LPR who seeks admission to the US? If so, what burden applied? It is true, after all, that Woodby was not a constitutional decision and did not create a separate law on abandonment as opposed to all deportation cases. As my learned colleague Cyrus Mehta and I wrote in “Home Is Where The Card Is: How to Preserve Lawful Permanent Status In A Global Economy,” 13 Bender’s Immigration Bulletin 849,856 notes 37-41 (July 1, 2008), even after IIRIRA, both the BIA and the Circuit Courts continued to place the traditional burden on the government when the applicant has a colorable claim to LPR status.
Enter Matter of Benno Rivens, 25 I&N Dec. 623,625(BIA Oct. 19, 2011) which settles the matter or should unless the Supreme Court unsettles it, but more on that disturbing possibility later. Keep reading! In Benno Rivens, the Board of Immigration Appeals tells us what we all wanted to hear ( unless of course we work for CBP!) : ” As a matter of first impression with respect to the application of section 101(a)(13)(C) of the Act,we find no reason to depart from our longstanding case law holding that DHS bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident is to be regarded as seekind admission.” Interestingly, the Board cites Matter of Huang, 19 I&N Dec. 749, 754(BIA 1988) which, in turn, had cited Woodby even though Congress eleced not to include the phrase ” unequivocal” in IIRIRA INA 240(c)(3)(A). Did this omission mean a lesser standard? The BIA has ” no occasion to determine whether, or to what degree, this has effected a substantive change.” Benno Rivens, 25 I&N Dec. at 626. Now that is frustrating, maybe even a tad annoying. Would not we all like to know ?
So what’s not to like? Isn’t this enough even for a disgruntled yet zealous advocate? Allow me to introduce Vartelas V. Holder, 620 F.3d 108 (2d Cir. 2010), cert. granted Sept. 27, 2011 (No. 10-1211). Here, an LPR had pled guilty in 1994 to the crime of possessing or making counterfeit securities. At that time, IIRIRA had not yet been enacted. How is IIRIRA relevant here? Look at INA 101(a)(13)(C)(v) that renders a returning LPR an applicant for admission if he or she has committed a crime involving moral turpitude that is not a petty offense. Even though the incident in question took place under a different legal regime, the BIA and the 2nd Circuit both ruled that the application of the post-IIRIRA admission standard was not impermissibly retroactive. This was in conflict with the contrary conclusions on this same issue reached by the 9th Circuit in Camins v. Gonzales, 500 F. 3d 872 (9th Cir. 2007) and the 4th Circuit in Olatunji v. Ashcroft , 387 F.3d 383(4th Cir. 2004). Perhaps to resolve this conflict among the different circuits, the Supreme Court has granted certiorari to review this narrow question of whether the current INA 101(a)(13)(C)(v) can be applied retroactively. Doubtless, the conceptual framework that will shape its analysis is the traditional two-step approach articulated in Landgraf v. USI Film Products, 511 US 244( 984). Since Congress did not expressly instruct on how far back IIRIRA can go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a0(13)(C)(v) will contradict basic notions of proper notice and upset “settled expectations” on which the actor in question “reasonably relied.” Interestingly, IIRIRA’s temporal effect cannot be circumscribed simply because “it is applied in a case arising from conduct antedating the statute’s enactment, or upsets expectations based in prior law.” Landgraf, 511 US at 269. When in doubt, retroactivity is not favored. Chang v United States, 327 F.3d 99,920 (9th Cir. 2003). The Supreme Court said it best: ” Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expecations should not be lightly disrupted.” See Landgraf, 511 US at 265.
As that immortal baseball philosopher Leroy Satchell Paige so wisely said: “Don’t look back. Something might be gaining on you.”