## Facts

- Alcibiades Antonio Peña, a native and citizen of the Dominican Republic, adjusted status to lawful permanent resident (LPR) on June 5, 2000, based on marriage to a U.S. citizen.
- In his 1999 adjustment application, Peña answered that he had no prior arrests, although records reflected a 1998 passport-fraud-related charge.
- At the adjustment interview, the government confronted Peña with passport-fraud records and requested disposition documentation; after he provided documentation, adjustment was granted.
- In 2010, after travel abroad, Peña sought reentry as a returning LPR and gave a sworn statement acknowledging the 1998 incident involved applying for a U.S. passport using another person’s identity documents.
- The Department of Homeland Security (DHS) served a Notice to Appear charging Peña as inadmissible under INA § 212(a), including fraud or willful misrepresentation, false claim to U.S. citizenship, and lack of valid entry documents.
- The Immigration Judge (IJ) concluded Peña’s LPR status was unlawfully obtained, treated him as an arriving alien seeking admission, sustained inadmissibility charges, and ordered removal.
- Peña appealed, arguing that because he did not fall within any INA § 101(a)(13)(C) exception, he could not be treated as seeking admission and could not be charged under INA § 212(a).

## Issues

1. Whether a returning LPR may be treated as seeking admission and charged as inadmissible under INA § 212(a) solely because DHS alleges the LPR status was unlawfully obtained, when none of the INA § 101(a)(13)(C) exceptions applies.
2. Whether precedent treating fraudulently obtained LPR status as not “lawfully admitted” for certain relief permits DHS to bypass INA § 101(a)(13)(C) and proceed on inadmissibility charges at reentry.

## Decision

- The Board of Immigration Appeals sustained the appeal and remanded for further proceedings.
- The Board held that a returning alien who has been granted LPR status cannot be regarded as seeking admission and may not be charged under INA § 212(a) unless DHS proves the alien falls within one of the enumerated INA § 101(a)(13)(C) exceptions.
- The Board rejected treating alleged defects in the original grant of LPR status as a non-statutory, additional exception to § 101(a)(13)(C).
- The Board distinguished precedent addressing eligibility for relief (including cases involving fraud in obtaining LPR status) as not controlling the admission-versus-not-admission determination governed by § 101(a)(13)(C).
- The Board noted DHS may pursue fraud-based removal under the deportability provisions applicable to admitted aliens, if supported by proof.

## Legal Principles

- INA § 101(a)(13)(C) establishes a general rule that a person granted LPR status is not regarded as seeking admission on return from travel unless one of six statutory exceptions applies.
- DHS and immigration courts may not create an extra-textual exception to § 101(a)(13)(C) by treating an LPR as seeking admission based solely on later allegations that the LPR status was improperly obtained.
- The statutory scheme separates inadmissibility grounds (INA § 212(a)) from deportability grounds (INA § 237); when § 101(a)(13)(C) applies, removal charges must proceed under deportability rather than inadmissibility.
- Precedent treating fraudulently obtained LPR status as not “lawfully admitted” for certain relief determinations does not authorize charging a returning LPR as an arriving alien for admission purposes absent a § 101(a)(13)(C) exception.

## Conclusion

The Board held that a returning lawful permanent resident who does not fall within an INA § 101(a)(13)(C) exception cannot be treated as seeking admission and cannot be charged as inadmissible under INA § 212(a) on the theory that the original grant of LPR status was unlawful; any fraud-based removal theory must proceed, if at all, under the deportability framework.


In re Peña, 26 I. & N. Dec. 613 (B.I.A. 2015)