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BIA Holds LPR Subject to Inadmissibility for Alleged Smuggling

One of benefits of being an LPR is the ability to travel abroad and return without being subject to the grounds of inadmissibility.  There are important exceptions to this, of course.  For example, if you have been abroad for more than 180 days, that is considered a meaningful departure.  If you have been absent for more than one year or otherwise abandoned your residency, you could be denied admission or paroled in for a hearing. A third exception is if you have committed a criminal offense listed in INA § 212(a)(2), which includes crimes involving moral turpitude or controlled substance violations.  But a less well-known and somewhat ambiguous exception involves those who have “engaged in illegal activity after having departed the United States.”  INA § 101(a)(10)(13)(C)(iii).  The BIA recently shed some light on the meaning of this provision in a case involving an LPR who went to Mexico and returned to the border attempting to enter with an undocumented juvenile.  Matter of Guzman Martinez, 25 I &N Dec. 845 (2012).

First, the BIA defined the term “illegal activity” as criminal activity, rather than some broader interpretation.  No one contested that attempting to smuggle an undocumented alien into the United States qualified as criminal activity. The real issue in the case was whether the LPR’s conduct at the border during the inspection process qualified as “after having departed the United States.”  The BIA concluded that it did.  It found that an LPR who leaves the United States is considered outside the country until he or she completes the inspection process.  Therefore, the LPR was properly subject to the grounds of inadmissibility, specifically section 212(a)(6)(E). The Service must still establish by clear and convincing evidence that he attempted to smuggle the child.

Smuggling is also a ground of deportability.  INA § 237(a)(1)(E) covers smuggling that takes place before entry, at the time of entry, or within five years of entry.  Had the LPR in this case been apprehended inside the United States, he would still have been subject to that ground of deportation.  But this ground of deportability differs slightly from the ground of inadmissibility.  An LPR, for example, who last entered the United States in 2004 and then sent money in 2010 to his cousin to pay for a smuggler, would not be subject to deportability.