The Board’s most recent precedent decision has “Circuit Court reversal” written all over it. It is hard to understand, let alone explain, how the Board reached the conclusion it did in Matter of Valenzuela-Felix.
In summary, when a permanent resident returns from a trip abroad, she is not making a new “admission” (and thus is not an “arriving alien”) unless she falls into one of the limited categories in 8 U.S.C. § 1101(a)(13)(C) (2006), which includes an alien who “has committed an offense identified in section 212(a)(2).”
Because the decision of whether to treat a returning permanent resident as an applicant for admission happens on the border, when the alien is trying to re-enter and is being processed by a CBP officer, it has widely been understood that the facts at that time were what mattered for determining whether the alien was an “arriving alien.”
Apparently not. Now, the Board says that the question of whether a permanent resident returning to the United States on January 1, 2012 is an “arriving alien” can be decided based on evidence from a later criminal proceeding. That is, the cake can apparently be served before you slice it.
Board member Patricia A. Cole offers a rare dissent, siding with common sense and reason in arguing that a CBP officer standing at the border and making a decision on the day of entry whether the person is an “arriving alien” shouldn’t be equipped with evidence from the future. And an Immigration Judge’s later review about whether the alien was, at the time of entry, an “arriving alien” cannot be informed by evidenced that was adduced later, after the person’s entry.
The implications of this decision are profound, and Cole is correct. If the “arriving alien” determination can be retroactively adjusted based on post-entry conduct, then lawful permanent residents lose any meaningful ability to assess their immigration risk prior to travel. It turns the act of inspection into a provisional, revocable gesture, subject to reinterpretation later if the government finds new facts it likes better.
It also raises serious questions about due process. Removal proceedings are supposed to be grounded in facts and conduct that existed at the time removal charges were initiated. The Board’s decision suggests that even a lawful reentry can be legally reclassified as inadmissible based on conduct that hadn’t happened yet. That kind of backward-looking logic erodes fundamental fairness and puts lawful residents in jeopardy for conduct they could not possibly have anticipated would affect their immigration status.
Practitioners should view Matter of Valenzuela-Felix as a cautionary tale. It is no longer enough to prepare clients for the risks they face at the port of entry. Now, we must also prepare them for the possibility that their lawful return could be undone months later by facts that didn’t exist at the time they crossed the border.
This decision deserves close scrutiny by the courts. It stretches the concept of “admission” beyond recognition and transforms the statutory language into a kind of legal Rorschach test, interpreted to suit the agency’s goals, rather than to uphold the statute’s plain meaning. One hopes that when this inevitably reaches a federal circuit, it will be treated as the legal overreach that it plainly is.