Othi v. Holder, No. 12-2316

Decided: October 29, 2013

In a case of first impression, the Fourth Circuit held that the Fleuti doctrine did not survive the Illegal Immigration Reform and Immigrant Responsibility Act’s (“IIRIRA”) enactment of 8 U.S.C. § 1101(a)(13). Therefore, despite being a lawful permanent resident (“LPR”), the court found that Gurpinder Othi (“Othi”) was seeking admission into the United States and was, accordingly, subject to removal because of his criminal history.

Othi, a native and citizen of India, gained LPR status in 1983. In the 1990s Othi accumulated several criminal convictions: theft in 1995, possession of cannabis in 1997, and second-degree murder in 1999. After serving a 12-year prison sentence following his murder conviction, Othi travelled to India in early 2011 to get married. He returned there in December that same year to visit his new wife. On January 11, 2012, after 17 days outside the country, Othi returned to the US. Upon inspection at the airport, border agents obtained Othi’s criminal record and the Department of Homeland Security subsequently initiated removal proceedings against him on January 17, 2012. The Notice to Appear alleged that Othi was an arriving alien who was removable on three grounds: (1) his prior conviction for a crime of moral turpitude; (2) his prior conviction under a law relating to controlled substances; and (3) his prior convictions of two or more crimes having aggregate sentences of five years or more. Citing Rosenberg v. Fleuti, Othi argued that LPRs are permitted to take “innocent, causal, and brief” trips abroad without having to seek re-admission and therefore he was not an arriving alien because he never intended his trip abroad to meaningfully interrupt his permanent residence. The immigration judge, however, rejected Othi’s Fleuti-based argument and ordered removal. Othi appealed to the Board of Immigration Appeals (the “Board”), again arguing he was not an arriving alien pursuant to Fleuti. Additionally, Othi contended that removal violated his due process rights. The Board, however, found that Congress amended the IIRIRA provisions at issue in Fleuti and therefore LPRs who commit offenses like those committed by Othi are always treated as arriving aliens under the new statute. This appeal followed.

On appeal, the Fourth Circuit affirmed the Board’s decision and held that the plain text of the amended statute supplanted the Fleuti doctrine. In so holding, the court noted that all circuits considering the issue had reached the same result despite having done so in different ways. The court explained that LPRs are generally exempt from the statutory classification of all other “aliens” for purposes of an “admission” designation; however, Congress limited the LPR exemption in specific and clear terms. Relevant to this case, the general exemption from “admission” applies to all LPRs “unless the alien … has committed an [enumerated] offense.” The court therefore concluded that rather than benefiting from the general exemption granted to LPRs, Othi fell back into the general class of “aliens” who are treated as all other aliens for “admission” purposes. Next, the court summarily rejected Othi’s due process claim.

Full opinion

-W. Ryan Nichols

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