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 21 I. & N. Dec. 1061; 1998 BIA LEXIS 46

U.S. Department of Justice Executive Office For Immigration Review Board of Immigration Appeals

February 26, 1998 1, Decided as amended

File A31 021 716 - York , 3333

Opinion

 [*1061] 

HOLMES, Board Member:

The Immigration and Naturalization Service appeals from a May 21, 1997, decision of an Immigration Judge that ordered terminated, without prejudice, the present removal proceedings against the respondent. 2 The dispositive issue in the Immigration Judge's opinion was whether the doctrine of "brief, casual, and innocent" departure from the United States first enunciated by the United States Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963), [*1062]  has survived the enactment of section 301(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-575 ("IIRIRA").  [**2]  3 The Immigration Judge concluded that the Fleuti doctrine was applicable to this case and ordered the proceedings terminated. The Immigration Judge's decision will be vacated, and the record remanded for further proceedings.

I. FACTS

The respondent, a native and citizen of the Dominican Republic, is a lawful permanent resident of the United States and has been for over 25 years. On April 7, 1997, upon his return to the United States after a 2-week visit to his native country, he was charged by the Service with inadmissibility under section 212(a)(2) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1182(a)(2)  [**3]  ), based on a 1974 conviction for sexual abuse of a minor. At the hearing before the Immigration Judge, and in the Immigration Judge's decision, the focus was on the continuing applicability of the Fleuti doctrine and on the character of the respondent's departure. Although the respondent acknowledged that he had been convicted on July 24, 1974, of sexual abuse of a minor in the second degree and received "three years probation," the issue of whether or not he had committed an offense identified in section 212(a)(2) of the Act was not specifically addressed and resolved. Rather, the Immigration Judge, relying on Rosenberg v. Fleuti, supra, terminated removal proceedings, determining that the respondent had made only a "brief, casual, and innocent" departure from the United States. The Service appealed, arguing that the respondent was properly charged as an arriving alien who was inadmissible despite his lawful permanent resident status, because, applying section 101(a)(13)(C)(v) of the Act (to be codified at 8 U.S.C. § 1101(a)(13)(C)(v)), the respondent must be regarded as "seeking an admission" into the United States.

II. ISSUE

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 21 I. & N. Dec. 1061 *;  1998 BIA LEXIS 46 **

In re Jesus COLLADO-Munoz, Respondent

CORE TERMS

alien, permanent resident, Immigration, of the Act, arriving, returning, departure, resident, conditions, charges, circumstances, mandatory, innocent, casual, proceedings, deportable, statutory language, inadmissible, adjudicator, mandates, sections, factors, purposes, removal, immigration law, case-by-case, terminated, permanent, departed, lawfully