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613

Matter of Alcibiades Antonio PENA, Respondent

Decided June 16, 2015

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien returning to the United States who has been granted lawful permanent resident 

status cannot be regarded as seeking an admission and may not be charged with 

inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1182(a) (2012), if he or she does not fall within any of the exceptions in 

section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). Matter of 

Koloamatangi, 23 I&N Dec. 548 (BIA 2003), distinguished.

FOR RESPONDENT: Michele H. Kane, Esquire, Boston, Massachusetts

BEFORE: Board Panel: COLE and WENDTLAND, Board Members. Dissenting 

Opinion: PAULEY, Board Member.

COLE, Board Member:

In a decision dated November 14, 2011, an Immigration Judge found 

the respondent inadmissible under sections 212(a)(6)(C)(i), (ii)(I), 

and (7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. 

§§ 1182(a)(6)(C)(i), (ii)(I), and (7)(A)(i)(I) (2006), and ordered him 

removed from the United States. The respondent has appealed from that 

decision. The appeal will be sustained and the record will be remanded to 

the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the Dominican Republic. The 

record reflects that he was married to a United States citizen who filed a 

visa petition on his behalf. Based on the September 9, 1996, approval of 

the visa petition, the respondent filed an application for adjustment of status

on December 1, 1999. He indicated on his application that he had no prior 

arrests. However, at an interview in connection with his application, the 

Government notified the respondent that its records showed that he had 

been charged with passport fraud by the Department of State passport 

office on December 28, 1998. The respondent was asked to provide 

documentation regarding the final disposition of these charges, which he 

submitted. On June 5, 2000, the respondent’s application for adjustment of 

status was granted and he was accorded lawful permanent resident status.
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On May 24, 2010, the respondent sought to reenter the United States 

after a trip abroad. At that time he gave a sworn statement in an interview 

with immigration officials. When asked whether he had ever been arrested, 

the respondent first replied that he had been arrested in 1998 for applying 

for a United States passport using the birth certificate and Social Security 

card of another person. When asked why he indicated that he had never 

been arrested on his adjustment of status application, the respondent said he 

thought he had not been arrested in relation to the passport application 

because he had voluntarily appeared at the passport office after learning 

from his wife that he was being investigated.1 He stated that he was 

fingerprinted at the office and released. He further explained that he was 

neither charged with nor convicted of passport fraud or any other offense.

After the respondent’s interview on May 24, 2010, the Department of 

Homeland Security (“DHS”) issued a notice to appear charging the 

respondent as inadmissible based on his alleged fraud and prior ineligibility 

for adjustment of status. At a hearing before the Immigration Judge, the 

respondent denied the charges. Applying Matter of Koloamatangi, 23 I&N 

Dec. 548 (BIA 2003), the Immigration Judge determined that the 

respondent had never been accorded lawful permanent resident status 

because he was ineligible for adjustment of status at the time that he 

applied. Specifically, the Immigration Judge found that the respondent 

made a false claim to United States citizenship by knowingly purchasing an 

illegally obtained birth certificate and Social Security card and that he did 

not disclose his arrest in this regard in his adjustment of status application.

Based on these findings, the Immigration Judge concluded that the 

respondent’s permanent resident status was unlawfully obtained and that he 

could therefore be deemed an “arriving alien” and charged under section 

212(a) of the Act.2 He then found the respondent inadmissible as charged. 

The Immigration Judge further found the respondent ineligible for relief 

from removal and ordered him removed from the United States. 

II. ISSUE

The threshold issue in this case is whether the respondent, who was 

granted lawful permanent resident status, can be charged in removal 

proceedings under section 212(a) of the Act as an arriving alien seeking 

admission, since he does not fall within any of the exceptions listed in 

 

1 The evidence in the record is not entirely clear as to whether the respondent, in fact,

voluntarily presented himself at the passport office.

2 The term “arriving alien” is defined in relevant part as “an applicant for admission 

coming or attempting to come into the United States at a port-of-entry” or by certain 

other means. 8 C.F.R. §§ 1.2, 1001.1(q) (2015).
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section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012), which 

allow for an alien lawfully admitted for permanent residence to be regarded 

as seeking admission to the United States.3 

We must resolve the question whether a returning lawful permanent 

resident can be treated as an arriving alien based on an allegation that he

acquired his status unlawfully. We conclude that an alien returning to the 

United States who has been granted lawful permanent resident status 

cannot be regarded as seeking admission and may not be charged with 

inadmissibility under section 212(a) of the Act if he does not fall within any 

of the exceptions in section 101(a)(13)(C) of the Act.

III. ANALYSIS

The respondent argues that he has not been properly charged and that

these proceedings should have been terminated. He first contends that he 

should not have been charged as an arriving alien when he returned to the 

United States because his eligibility for adjustment of status had not been 

determined at the time of his return. He asserts that if the DHS suspected

he was inadmissible at the time he adjusted his status, he should have been 

allowed to enter as a returning resident and charged with a ground of 

deportability in section 237(a) of the Act, 8 U.S.C. § 1227(a) (2012).

The respondent also disputes the Immigration Judge’s determination 

that he “willfully misrepresented a material fact” in his application for 

adjustment of status, in which he indicated that he had never been arrested. 

The respondent claims that he was not aware that his contact with the 

Department of State’s passport office constituted an arrest. He notes that 

 

3

Section 101(a)(13)(C) of the Act provides:

An alien lawfully admitted for permanent residence in the United States shall not 

be regarded as seeking an admission into the United States for purposes of the 

immigration laws unless the alien—

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 

180 days,

(iii) has engaged in illegal activity after having departed the United States,

(iv) has departed from the United States while under legal process seeking 

removal of the alien from the United States, including removal proceedings under 

the Act and extradition proceedings,

(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.
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his adjustment application was granted after he submitted all of the 

information requested in that regard.

A. Returning Lawful Permanent Residents as Arriving Aliens

In deciding whether the respondent is an arriving alien, we examine the 

language of the statute to determine whether Congress expressed a plain 

and unambiguous intent that aliens in the respondent’s circumstances 

should be considered applicants for admission under section 101(a)(13)(C) 

of the Act. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our 

first step in interpreting a statute is to determine whether the language at 

issue has a plain and unambiguous meaning with regard to the particular 

dispute in the case.”); Matter of Valenzuela, 25 I&N Dec. 867, 869

(BIA 2012). Whether language is plain and unambiguous is “determined 

by reference to the language itself, the specific context in which that 

language is used, and the broader context of the statute as a whole.” 

Robinson v. Shell Oil Co., 519 U.S. at 341.

The plain language of section 101(a)(13)(C) indicates that an alien who 

does not fall within one of the statutory exceptions and who presents a 

colorable claim to lawful permanent resident status is not to be treated as 

seeking an admission and should not be regarded as an arriving alien. 

See also Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988) (stating that 

the Government has the burden to show that an alien should be deprived of 

his lawful permanent resident status if he has a colorable claim to returning 

resident status). 

In addition to the plain language of the statute, we find further 

support for our position in our case law interpreting the “Fleuti doctrine,” 

which predated section 101(a)(13)(C) of the Act. Rosenberg v. Fleuti, 

374 U.S. 449 (1963).4 For example, in Matter of Rangel, 15 I&N Dec. 789 

(BIA 1976), we addressed whether a lawful permanent resident’s attempted 

return constituted an “entry” where her original admission for permanent 

 

4 Before section 101(a)(13)(C) of the Act was enacted by the Illegal Immigration 

Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 

110 Stat. 3009-546 (“IIRIRA”), the question whether a returning lawful permanent 

resident was considered to be making an “entry” was initially governed by the so-called 

“reentry doctrine.” See Leal-Rodriguez v. INS, 990 F.2d 939, 942−43 (7th Cir. 1993). 

However, the Supreme Court announced a departure from the long-established concept of 

“entry” under former section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1958), 

stating that a new entry did not occur when the trip outside the United States was 

“innocent, casual, and brief.” Rosenberg v. Fleuti, 374 U.S. at 462. We subsequently 

recognized that the Fleuti doctrine applied only to absences by aliens who had previously 

been lawfully admitted for permanent residence. See Matter of Castillo-Pineda, 15 I&N 

Dec. 274 (BIA 1975); Matter of Dabiran, 13 I&N Dec. 587 (BIA 1970). 
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residence was unlawful because it involved a false claim. In that case, we 

had to decide first whether the proper forum in which to adjudicate the 

lawfulness of an original admission was a deportation proceeding or an 

exclusion proceeding.5 We held that the alien was not making an entry 

within the meaning of the Act and, therefore, that the proper forum for 

adjudicating the lawfulness of her original admission was a deportation 

proceeding. Id. at 791−92.6

The question addressed in Matter of Rangel is analogous to that now 

before us, namely, whether a returning permanent resident who is suspected 

of unlawfully acquiring his or her status should be placed in exclusion 

proceedings (now charged with inadmissibility) or deportation proceedings 

(now charged with deportability). Our decision in Rangel comported with 

the Supreme Court’s recognition of the constitutional right of due process 

that is owed to lawful permanent residents. See Landon v. Plasencia, 

459 U.S. 21, 30−32 (1982) (citing Chew v. Colding, 344 U.S. 590 (1953)).

7

Prior to the 1996 enactment of section 101(a)(13)(C) of the Act, the 

proper forum for determining whether a lawful permanent resident had

unlawfully obtained his status would have been a deportation proceeding,

rather than an exclusion proceeding, unless he was making an “entry.” 

Applying the same rationale to the current law, an alien in the respondent’s 

circumstances should be charged under section 237(a) of the Act, rather 

than section 212(a), unless he can be regarded as seeking an admission 

under section 101(a)(13)(C).

8

 

5 At that time, the immigration system was bifurcated into two types of proceedings. In 

general, aliens who were already present in the United States were subject to deportation 

proceedings, and aliens seeking to enter the country were placed in exclusion 

proceedings. The IIRIRA revised this system. Generally, both classes of aliens are now 

placed into removal proceedings, but they are charged with either deportability under 

section 237(a) of the Act or inadmissibility under section 212(a).

6 We have applied this reasoning from Matter of Rangel in other contexts. For 

example, in Matter of Umale, 16 I&N Dec. 682 (BIA 1979), we held that a petitioner’s 

lawful permanent resident status cannot be attacked in visa petition proceedings based on 

an allegation that such status was improperly obtained if the petitioner is residing in the 

United States. In that case, we held that “until the petitioner has been found deportable

according to the procedures specified by law, she remains a lawful permanent resident of 

the United States.” Id. at 683 (emphasis added). 

7 The dissent is misguided in not recognizing that the rationale of the Supreme Court 

and Board case law was to confer advantages on the class of lawful permanent residents

such as the respondent.

8 We recognize that in Matter of Collado, 21 I&N Dec. 1061, 1065 (BIA 1998), we 

determined that the Fleuti doctrine had not survived the enactment of section 

101(a)(13)(C) of the Act by the IIRIRA. However, since our decision was issued, the 

Supreme Court has held that at least one aspect of the Fleuti doctrine survived the 

IIRIRA amendments. See Vartelas v. Holder, 132 S. Ct. 1479 (2012) (holding that the 

(continued . . .)
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In light of the plain statutory language of section 101(a)(13)(C) of the 

Act and the above-mentioned decisions of the Supreme Court and the 

Board, we believe that the long-established principles regarding the 

constitutional rights of lawful permanent residents are equally applicable to 

returning lawful permanent residents today as they were in the past. 

See generally United States v. Texas, 507 U.S. 529, 534 (1993) (stating that 

statutes are to be read with a presumption that favors the retention of 

familiar principles, except when a contrary purpose is evident). Therefore, 

we conclude that a returning lawful permanent resident who does not fall 

within one of the exceptions in section 101(a)(13)(C) of the Act cannot be 

regarded as seeking admission to the United States.

B. Application to the Respondent

The Immigration Judge found that the respondent was never “lawfully 

admitted” as a permanent resident because he had obtained his status 

through fraud. He therefore concluded that the respondent could be 

regarded as an arriving alien. In making this determination, he relied on 

our decision in Matter of Koloamatangi, 23 I&N Dec. 548, where we held, 

in the context of eligibility for relief, that an alien who acquired permanent 

resident status through fraud or misrepresentation had never been “lawfully 

admitted for permanent residence” and was therefore ineligible for 

cancellation of removal under section 240A(a) of the Act, 8 U.S.C. 

§ 1229b(a) (2000).9 See also Mejia-Orellana v. Gonzales, 502 F.3d 13 

(1st Cir. 2007). Applying this rationale, the Immigration Judge adjudicated 

the issue of the lawfulness of the respondent’s status and found that it had

been fraudulently obtained. He therefore found that the respondent was 

_______________________________________

Fleuti doctrine still applies to lawful permanent resident aliens who traveled abroad after 

a conviction that predated the IIRIRA). The extent to which Fleuti remains good law

after section 101(a)(13)(C) of the Act was adopted by the IIRIRA continues to be a 

vigorously contested issue. The Board and some Federal courts have considered the 

question whether the Fleuti doctrine survived the enactment of section 101(a)(13)(C) 

in the broader context of deciding whether the exceptions listed in sections 

101(a)(13)(C)(i)−(vi) of the Act applied to the returning lawful permanent residents in 

those cases. However, section 101(a)(13)(C) of the Act does not address or otherwise 

include within its exceptions a lawful permanent resident in the respondent’s 

circumstances. The resolution of this case does not implicate the larger issue of the 

extent to which the Fleuti doctrine has, in fact, survived the IIRIRA.

9

In Matter of Koloamatangi, we relied on the rationale from our prior decision in 

Matter of T-, 6 I&N Dec. 136 (BIA, A.G. 1954). However, we note that in that case the 

issue was whether the alien was returning to an unrelinquished “lawful domicile,” not 

whether he had been lawfully admitted for permanent residence.
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never a lawful permanent resident and thus could be treated as an “arriving 

alien.”

The question whether a returning lawful permanent resident can be 

regarded as an arriving alien and charged under section 212(a) of the Act

was not before us in Matter of Koloamatangi because the alien, who was 

suspected of having procured his status by fraud, was charged with 

deportability under section 237(a) of the Act. He was therefore afforded 

the due process owed to him as one who “was facially and procedurally in 

lawful permanent resident status.” Matter of Koloamatangi, 23 I&N Dec.

at 549. His ineligibility for the relief he sought was determined after the 

Immigration Judge resolved the issue of the unlawfulness of his permanent 

resident status, not prior to the commencement of proceedings. See id.; 

see also Matter of Wong, 14 I&N Dec. 12 (BIA 1972).

10

 We therefore 

conclude that Matter of Koloamatangi is not controlling in this case.

Because the respondent is a lawful permanent resident who does not fall 

within one of the exceptions in section 101(a)(13)(C) of the Act, he should 

not have been regarded as seeking admission to the United States. 

Therefore, he cannot be charged under section 212(a) of the Act, 

notwithstanding any questions regarding the lawfulness of his status.

However, the DHS is not precluded from charging an alien such as the 

respondent under section 237(a) of the Act. The grounds of deportability 

contain a provision that is clearly applicable to an alien who allegedly 

obtained his lawful permanent resident status through fraud or 

misrepresentations. See section 237(a)(1)(A) of the Act (providing that 

“[a]ny alien who at the time of entry or adjustment of status was within one 

or more of the classes of aliens inadmissible by the law existing at such 

time is deportable”); see also section 212(a)(6)(C) of the Act.

We will remand the record to allow the Immigration Judge to address 

these issues in the first instance, if necessary. If the DHS can meet its 

burden of proving that the respondent is deportable as an alien who 

acquired lawful permanent resident status through fraud, then in terms of 

available relief from removal, the respondent will be in the same position 

he would have been in if he had never obtained such status. See Matter of 

Koloamatangi, 23 I&N Dec. 548. We express no opinion as to whether the 

DHS can meet its burden in this particular case.

 

10 Given our disposition in this case, we need not decide which party would bear the 

burden of proving admissibility if a returning permanent resident were properly charged 

under section 212(a) of the Act based on an allegation that he had unlawfully obtained his 

status. See generally Matter of Rivens, 25 I&N Dec. 623, 626 (BIA 2011) (noting the 

“open question of who . . . bears the burden of showing admissibility, or a lack of 

inadmissibility, once it has been determined that an alien is an applicant for admission”).
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IV. CONCLUSION

We conclude that the respondent, a lawful permanent resident who does 

not fall within one of the exceptions in section 101(a)(13)(C) of the Act,

cannot be regarded as an arriving alien. Therefore, the charges brought by 

the DHS under section 212(a) of the Act should not have been sustained. 

Accordingly, we will sustain the respondent’s appeal and remand the record 

to give the DHS an opportunity to properly charge him under section 237(a) 

of the Act. If necessary, the Immigration Judge may then determine

whether the respondent lawfully obtained his permanent resident status and 

allow him to apply for any relief from removal for which he may be 

eligible. 

ORDER: The respondent’s appeal is sustained.

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.

DISSENTING OPINION: Roger A. Pauley, Board Member

I believe that the respondent was properly charged under section 212(a)

of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012). As an 

ostensible returning lawful permanent resident, he did not need to be 

charged under section 237(a) of the Act, 8 U.S.C. § 1227(a) (2012),

because the Immigration Judge found at his removal proceeding that he was 

never lawfully admitted for permanent residence.

The majority arrives at the opposite result by, in effect, limiting our 

decision in Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), where 

we held that an alien who acquired permanent resident status through fraud 

or misrepresentation has never been “lawfully admitted for permanent 

residence,” to the context in which an ostensible lawful permanent resident 

seeks relief. The majority therefore finds that Matter of Koloamatangi

does not apply to the situation in which a returning lawful permanent 

resident is found to have wrongly obtained his status during removal 

proceedings. The majority explains that such a person must be charged 

under section 237(a) of the Act because he does not fall into any of the six 

enumerated categories at section 101(a)(13)(C) of the Act, 8 U.S.C. 

§ 1101(a)(13)(C) (2012), allowing for a returning lawful permanent 

resident to be charged as an applicant for admission. I disagree. 

The majority’s position embodies a stark violation of the bedrock 

principle of statutory construction that a term, in this case “lawfully 

admitted for permanent residence,” appearing in the same statute should be 

given an identical construction and not be accorded two different meanings. 
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In that regard, we have consistently held, and the courts of appeals 

have uniformly endorsed our interpretation, that the phrase “lawfully 

admitted for permanent residence” means that the alien must have 

been in substantive compliance with the immigration laws. See Injeti 

v. U.S. Citizenship & Imm. Serv., 737 F.3d 311 (4th Cir. 2013);

Estrada-Ramos v. Holder, 611 F.3d 318 (7th Cir. 2010); Kyong Ho Shin 

v. Holder, 607 F.3d 1213 (9th Cir. 2010); Walker v. Holder, 589 F.3d 

12 (1st Cir. 2009); De La Rosa v. U.S. Dep’t of Homeland Sec., 489 F.3d 

551 (2d Cir. 2007); Savoury v. U.S. Att’y Gen., 449 F.3d 1307 (11th Cir. 

2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005); Matter 

of Koloamatangi, 23 I&N Dec. 548. Moreover, this understanding long 

preceded the 1996 enactment of section 101(a)(20) of the Act. See, e.g., 

Monet v. INS, 791 F.2d 752 (9th Cir. 1986); Matter of Longstaff, 716 F.2d 

1439 (5th Cir. 1983); Matter of T-, 6 I&N Dec. 136 (BIA, A.G. 1954).

Significantly, Congress chose to use the same term in section 

101(a)(13)(C) of the Act, which is applicable to returning lawful permanent 

residents, demonstrating that Congress intended that only lawful permanent 

residents with valid status are subject to its regime. It would have been 

easy for Congress to preface section 101(a)(13)(C) of the Act with language 

asserting the construction that the majority would engraft on that section, 

such as that an alien “admitted for lawful permanent residence, whether or 

not such status was rightly conferred,” shall not be regarded as seeking 

admission unless one or more of the six enumerated exceptions applies. 

However, by using the very term it defined in section 101(a)(20) of the Act

(indeed, the same subsection!), Congress clearly expressed its intent that 

the definition therein applies. Thus, the Immigration Judge correctly 

determined that Matter of Koloamatangi governs. The fact that a different 

regime existed prior to the 1996 enactment of section 101(a)(13)(C) of the 

Act is irrelevant where we have found that Congress intended to abandon 

that regime for returning lawful permanent residents in significant respects. 

See Matter of Collado, 21 I&N Dec. 1061 (BIA 1998). 

The majority maintains that the respondent was entitled to be treated as 

a lawful permanent resident for entry purposes because at the time he 

arrived at the point of entry, it had not yet been determined that his 

permanent resident status had been improperly conferred, and none of the 

six exceptions in section 101(a)(13)(C) of the Act was implicated. Once 

again, I disagree. Just as we determined in Matter of Valenzuela-Felix, 

26 I&N Dec. 53 (BIA 2012), the ensuing removal proceeding is the proper 

forum in which to make a determination whether the respondent was 

correctly charged under section 212(a) of the Act. 

Fortunately, not much damage will result from the majority’s erroneous 

decision. As the majority opinion observes, the Department of Homeland 

Security (“DHS”) may charge a returning lawful permanent resident who it 
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believes has wrongly obtained his or her status as having been inadmissible 

at the time of adjustment of status. See section 237(a)(1)(A) of the Act. If 

such charge is upheld, Matter of Koloamatangi will apply to render the 

alien ineligible for relief to the extent relief is sought based on lawful 

permanent resident status. However, the majority decision does have a 

modicum of practical import because an alien charged under section 237(a)

(as opposed to section 212(a)) may seek a waiver of deportability under 

section 237(a)(1)(H) of the Act, if he or she is subject to removal as having 

been inadmissible at the time of admission because of fraud. That section

contains more generous provisions allowing for such a waiver than does the 

comparable provision at section 212(i) of the Act.1 

To the extent that the majority confers an advantage on the class of 

lawful permanent residents who wrongly obtained their status—as 

compared to the class of lawful permanent residents who obtained their 

status rightfully but are charged as applicants for admission under section 

101(a)(13)(C)—I find it an unlikely expression of congressional intent. 

The former class, which includes the respondent in this case, generally 

represents a less deserving group inasmuch as they ordinarily will have 

obtained their status by fraud or other wrongful means.2

For the foregoing reasons, I would find that the Immigration Judge 

correctly applied Matter of Koloamatangi to sustain the charges under 

section 212(a) of the Act.

 

1

For example, section 212(i) of the Act generally requires a showing of “extreme 

hardship” to a qualifying relative, whereas section 237(a)(1)(H) of the Act contains no 

such requirement. 

2

Indeed, the majority decision seemingly requires that even an alien who purchased a 

fraudulent green card, but was not convicted of that offense, is entitled to be charged 

under section 237(a) of the Act. I recognize that, on occasion, a lawful permanent 

resident who obtained status wrongly may not be at fault, for example, where a child 

obtained status derivatively and was unaware of his or her parent’s wrongful acts in 

obtaining lawful permanent resident status, or where the DHS erred in conferring lawful 

permanent resident status despite full disclosure by an alien of facts that should have led 

to the denial of adjustment. But such instances are relatively rare and, in any event, such 

an alien has nevertheless benefited from a status wrongly conferred.