COLLADO
21 I. & N. Dec. 1061 (1998)
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Rule of Law:
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a lawful permanent resident who falls within one of the six statutorily defined categories in section 101(a)(13)(C) of the Immigration and Nationality Act is regarded as 'seeking an admission' into the United States upon return from abroad. The pre-existing 'brief, casual, and innocent' departure doctrine established in Rosenberg v. Fleuti is no longer applicable to these individuals.
Facts:
- Jesus Collado-Munoz, a native and citizen of the Dominican Republic, has been a lawful permanent resident of the United States for over 25 years.
- In 1974, Collado-Munoz was convicted of sexual abuse of a minor in the second degree and sentenced to three years of probation.
- In early 1997, Collado-Munoz took a two-week trip to his native country, the Dominican Republic.
- On April 7, 1997, Collado-Munoz sought to re-enter the United States.
- Upon his return, immigration authorities sought to deny him re-entry, classifying him as an inadmissible alien based on his 1974 criminal conviction.
Procedural Posture:
- The Immigration and Naturalization Service (INS) initiated removal proceedings against Jesus Collado-Munoz in an immigration court.
- At a hearing, the Immigration Judge found that Collado-Munoz's departure was 'brief, casual, and innocent' under the doctrine of Rosenberg v. Fleuti.
- The Immigration Judge ordered the removal proceedings terminated without prejudice.
- The INS, as the appellant, appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA).
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Issue:
Does the 'brief, casual, and innocent' departure doctrine from Rosenberg v. Fleuti survive the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to prevent a returning lawful permanent resident, who has committed a crime of moral turpitude, from being regarded as 'seeking an admission' under section 101(a)(13)(C)(v) of the Immigration and Nationality Act?
Opinions:
Majority - Holmes, Board Member
No. The 'brief, casual, and innocent' departure doctrine established in Rosenberg v. Fleuti does not survive the enactment of IIRIRA for individuals who fall into the categories listed in the amended section 101(a)(13)(C) of the Act. Congress completely revised the statutory framework by replacing the old definition of 'entry,' which the Fleuti court interpreted, with a new definition of 'admission.' The new section 101(a)(13)(C) creates a clear dichotomy: a lawful permanent resident is not regarded as seeking admission UNLESS they fall into one of six specific exceptions. The statute's plain language compels the conclusion that if a returning LPR has committed an offense identified in section 212(a)(2), as Collado-Munoz has, they are statutorily defined as 'seeking an admission,' without any further judicial inquiry into the nature of their departure. Congress was aware of the 'brief, casual, and innocent' standard and chose not to include it, thereby abrogating the judicial doctrine in favor of a bright-line statutory test.
Dissenting - Rosenberg, Board Member
Yes. The principles of the Fleuti doctrine should still apply because the majority misinterprets the statute's plain language. The statutory phrase 'shall not be regarded as seeking an admission... unless' does not mean that an LPR who falls into an exception must be treated as seeking admission. Instead, it means it is permissible to treat them as such, leaving the ultimate determination to an impartial adjudicator on a case-by-case basis. The majority's rigid, 'bright-line' reading abdicates the Board's quasi-judicial role and creates a harsh, irrational distinction between LPRs who travel and those who do not, raising serious constitutional due process and equal protection concerns. The statute is silent on explicitly overruling Fleuti, and its spirit is preserved in the new law, which should be interpreted to protect the fundamental rights of long-term residents.
Analysis:
This decision marks a significant shift in immigration law by formally replacing the judicially-created, flexible 'Fleuti doctrine' with a rigid, statutory test for returning lawful permanent residents. By holding that section 101(a)(13)(C) of the IIRIRA-amended INA is a bright-line rule, the Board of Immigration Appeals eliminated a major defense for LPRs with past criminal convictions or other issues who traveled abroad. The ruling makes it far easier for the government to place such LPRs into removal proceedings as 'arriving aliens,' who are subject to grounds of inadmissibility and carry a heavier burden of proof than LPRs considered to be already in the country. This case solidifies a move towards stricter statutory interpretation over flexible, equity-based judicial doctrines in immigration adjudication.
