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.