Imagine you have been a green card holder living in the United States legally for many years. You plan a cruise to the Bahamas and enjoy a weeks vacation with your family. Upon return, you are inspected by Customs and Border Protection at the port and they question you about a pending criminal case you have been fighting where the police accused you of theft. You have never been arrested before and you are confident that justice will prevail in the current case. Nevertheless, Customs and Border Protection do not admit you as a returning resident. They confiscate your green card and “parole” you as an “arriving alien” into the United States. While you are physically permitted to enter, by operation of law, you are still waiting at the seaport for legal admission. The reason that the authorities often do this is because they are treating you as an “applicant for admission” pursuant to 8 U.S.C. § 1101(a)(13)(C)(v). Anyone who has “committed” a crime involving moral turpitude is subject to being treated as an “applicant for admission” rather than a returninglawful permanent resident . The Third Circuit Court of Appeals recently examined what the burden of proof is for the authorities to determine that an alien as “committed” a crime involving moral turpitude in cases where there is not a conviction yet. See, Doe v. Att’y Gen. of the U.S., 9/8/11. The Circuit Court held that the U. S. Government cannot simply decide when and when not to designate a returning resident as an “alien applying for admission”. Rather, there is a burden of proof on the Customs and Border Protection officers to be able to demonstrate that there is probable cause to believe that the returning resident has, indeed, committed a crime involving moral turpitude. This is important because, in some cases, a crime can make you inadmissible but not deportable. If the immigration authorities are compelled to admit a returning resident who subsequently is convicted, the only choice is to initiate removal proceedings which places the burden squarely on the U.S. government to prove that a person is removable.
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