Introduction: When is a Person who has Been Admitted as an LPR Considered to be Seeking Admission?

With very limited exceptions, a person admitted for lawful permanent residence cannot be considered to be “seeking admission” into the United States. This means that an LPR, unless he or she falls under one of the exceptions in section 101(a)(13)(C) of the Immigration and Nationality Act (INA), cannot be charged with inadmissibility under section 212(a). Rather, in order to be placed into removal proceedings, such an LPR would have to be charged with deportability under section 237.

In its 2003 decision in Matter of Koloamatangi [PDF version], the Board of Immigration Appeals (BIA) held that an alien who had been admitted as an LPR, but who had obtained his or her LPR status through “fraud or misrepresentation,” [see article]  was in fact never lawfully admitted for LPR status, and thus ineligible for any form of relief designated for LPRs.1

However, in its 2015 decision in Matter of Pena [PDF version], the BIA limited the scope of its decision in Matter of Koloamatangi.2 In Matter of Pena, the BIA broadly held that an alien who was admitted as an LPR cannot be considered a candidate for admission unless he or she falls under one of the exceptions in 101(a)(13)(C)., which does not include having acquired LPR status through fraud or misrepresentation.

In this article, we will look at the laws guiding when a person admitted as an LPR can later be considered a candidate for admission, and then look at the BIA’s precedent decisions in Matter of Koloamatangi and Matter of Pena.

Statute: When Can a Person Admitted as an LPR be Considered to be Seeking Admission?

“Lawfully admitted for permanent residence” is defined by statute as “having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”3

Section 101(a)(13)(C) of the INA, 8 U.S.C. 1101(a)(13)(C), lists the situations in which a person who has been admitted as an LPR can be regarded as seeking admission:

(i) has abandoned or relinquished [LPR] 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 INA] 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 240(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.

Subclause (v) is limited by its own terms to crimes of moral turpitude (CIMTs) and to certain crimes related to controlled substances. Follow this link to read our discussion about this and the 212(h) inadmissibility waiver. Relief under 240(a) refers to LPR-cancellation of removal.

The BIA’s Decision in Matter of Koloamatangi

Matter of Koloamatangi concerned a person who had been admitted as an LPR who was in removal proceedings. The respondent (Koloamatangi) argued that he had accrued the necessary time of lawful admission in order to be eligible for LPR cancellation of removal [see article] before the clock was stopped due to the entry of a final administrative order of deportation.4

However, the respondent had obtained his LPR status through a bigamous marriage. Relying upon existing BIA and circuit court precedent that had dealt with persons who had fraudulently obtained LPR status under a prior statutory scheme, the BIA held that, because the respondent had not been lawfully admitted as an LPR, he could not apply for LPR cancellation of removal.5 Matter of Koloamatangi extended the precedents (requiring that an LPR have obtained his or her status lawfully in order to benefit from immigration relief for LPRs) that applied to older statutes to the new cancellation of removal for LPRs (LPR cancellation of removal was codified in 1996).

In remanding the case to the Immigration Judge on other issues (the BIA upheld the Immigration Judge with regard to the respondent never having been lawfully admitted for LPR status), the BIA instructed the Immigration Judge to consider the respondent’s eligibility for non-LPR cancellation of removal [see article].

The BIA Limits Matter of Kolomatangi in Matter of Pena

Matter of Pena also concerned a respondent who was accused of obtaining his LPR status through fraud or misrepresentation. However, in this case, the respondent was charged as inadmissible upon his reentry after a short trip abroad under sections 212(a)(6)(C)(i), (ii)(I) and (7)(A)(i)(I).6 In order to be inadmissible on these stated grounds; however, the respondent would have to be considered an “arriving alien.” Relying on the BIA’s decision in Matter of Koloamatangi, the Immigration Judge held that, because the respondent had obtained his LPR status through fraud or misrepresentation, he was never lawfully admitted for permanent residence. The Immigration Judge thus held that the respondent was classifiable as an arriving alien on account of having never lawfully obtained LPR status, although he did not meet any of the six criteria listed in 101(a)(13)(C) under which a person who has been admitted as an LPR can be regarded as seeking admission.

However, the BIA reversed the Immigration Judge and limited the reach of Matter of Koloamatangi. In reversing the Immigration Judge, the BIA majority decision in Matter of Pena distinguished the issue and procedural posture at hand from that in Matter of Koloamatangi. In Matter of Pena, the issue was whether the respondent could be regarded as an “arriving alien” rather than an LPR upon his reentry into the United States, and his ineligibility for relief had been determined prior to the commencement of proceedings. In contrast, the respondent in Matter of Koloamatangi had been charged with a deportability ground specifically applicable to LPRs, and his ineligibility for the relief he sought was determined in removal proceedings.

The majority then held that an alien entering the United States with a “colorable claim to lawful permanent resident status” may be considered an “arriving alien” rather than an LPR only if the government proves that he or she falls within one of the exceptions listed in section 101(a)(13)(C).7 Furthermore, the majority noted that the deportability ground found in 237(a)(1)(A) [“any 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”] was available to immigration officials in the situation at hand in Matter of Pena. The majority held that if, in the course of proceedings, it were established that the respondent had obtained his LPR status through fraud or misrepresentation, then the respondent in Matter of Pena would be in the same posture as the respondent in Matter of Koloamatangi, who, because he had not been lawfully admitted as an LPR, could not apply for LPR cancellation of removal.

The Dissent in Matter of Pena

Board Member Roger A. Pauley, who wrote the decision in Matter of Koloamatangi, wrote a dissenting opinion in Matter of Pena. Board Member Pauley argued in his dissent that the majority in Matter of Pena improperly limited the central holding of Matter of Koloamatangi, and that the Immigration Judge had been correct in holding that the respondent was an arriving alien and thus subject to the inadmissibility grounds under section 212(a). Board Member Pauley agreed with the majority that the distinction may ultimately make little difference in this case because the respondent could be charged with the similar deportability ground as an LPR; however, Board Member Pauley noted that it is slightly easier to obtain a waiver of deportability under section 237(a)(1)(H) than it is to obtain a waiver of inadmissibility under section 212(i). For example, Board Member Pauley explained in a footnote that the 212(i) waiver requires the alien to demonstrate that his or her being denied admission would result in extreme hardship [see article] to an immediate relative, while the 237(a)(1)(H) waiver would not. Therefore, he argued that the respondent would be in a more advantageous position for having wrongfully obtained LPR status.

Exception in the Eighth Circuit?

In 2009, the Eighth Circuit held in Kim v. Holder [PDF version] that an alien who had obtained LPR status by bribing an INS official had never obtained lawful permanent residency, and thus upheld the Immigration Judge’s finding in the case that the alien was removed based upon being found to be inadmissible under sections 212(a)(6)(A)(i) and (a)(7)(A)(i)(I) at the time of his reentry.8

Matter of Pena makes no mention of this case, and it is important to note that the situation described is distinct (that the government alleged in Kim v. Holder that the green card in question was obtained through bribing an immigration official).9 However, Kim v. Holder shows that at least in the Eighth Circuit, there is precedent that obtaining a green card through bribery and with a “factually baseless immigration record” may lead to an alien being considered to be seeking admission rather than returning as an LPR.

Conclusion: Limited Circumstances Under Which an LPR can be an “Applicant for Admission”

Matter of Pena limits significantly the reach of Matter of Koloamatangi. The precedent established by Matter of Koloamatangi, that an alien is ineligible for LPR cancellation of removal on account of having fraudulently obtained LPR status, is still good law. However, Matter of Pena establishes that an alien who has been admitted as an LPR cannot be found inadmissible at a point of entry unless the government meets the burden of showing that he or she falls under one of the six exceptions listed in 101(a)(13)(C), which does not include having obtained LPR status through fraud or misrepresentation. Thus, following Matter of Pena, an alien who obtained LPR status through fraud or misrepresentation cannot be found inadmissible at a point of entry unless the government meets the burden of showing that he or she otherwise falls under an exception listed in 101(a)(13)(C).

Taking the two cases together, it is clear that while obtaining LPR status through fraud or misrepresentation can render an alien deportable or ineligible for certain forms of immigration relief based upon not having lawfully obtained LPR status; it cannot by itself render someone who was admitted as an LPR an “arriving alien” upon entry into the United States. Such an alien may be charged with deportability, be he or she cannot be charged with inadmissibility under section 212(a) upon reentry.

Although Matter of Pena does not guarantee any form of relief, or even make it likely that an alien who obtained his or her LPR status fraudulently will be eligible for any form of relief, it does leave a returning alien accused of obtaining LPR status through fraud or misrepresentation in a slightly better position than if he or she were to be considered to be seeking admission upon reentry. Any alien charged with inadmissibility or deportability should consult immediately with an experienced immigration attorney for a full assessment of his or her situation and potential avenues for relief.

  1. Matter of Koloamantangi, 23 I&N Dec. 548 (BIA 2003)
  2. Matter of Pena, 26 I&N Dec. 613 (BIA 2015)
  3. INA § 101(a)(20)
  4. The BIA cited the old 8 C.F.R. § 1.1(p) which repeated the INA’s definition of LPR status and added “such status terminates upon entry of a final administrative order of exclusion or deportation.”
  5. The BIA cited the cases that dealt with persons who obtained their LPR status through fraud in the context of eligibility for relief under the old INA § 212(c): Matter of T-, 6 I&N Dec. 136 (BIA, A.G. 1954); Matter of Wong, 14 I&N Dec. 12 (BIA 1972); Monet v. INS, 791 F.2d 752 (9th Cir. 1986); Matter of Longstaff, 716 F.2d 1439, 1441-42 (5th Cir. 1983); Biggs v. INS, 55 F.3d 1398, 1401 (9th Cir. 1995). These decisions established that in order to benefit from forms of relief for LPRs, the person must have lawfully obtained LPR status.
  6. 212(a)(6)(C)(i) covers fraud or misrepresenting a material fact in order to procure an immigration benefit; (ii)(I) covers false claims of U.S. citizenship; (7)(A)(i)(I) covers lacking documentation for entry at the time of applying for admission.
  7. The BIA cited Matter of Huang, 19 I&N Dec. 749 (BIA 1988)
  8. Kim v. Holder, 560 F.3d 833 (8th Cir. 2009)
  9. However, the Eighth Circuit did cite Matter of Koloamatangi in the context of rejecting the Kim’s contention that he was eligible for LPR cancellation of removal.

Resources and Materials:

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 67. Print. Treatises & Primers.