Unpub. BIA on Fleuti, Entry, Smuggling, Sec. 237(a)(1)(E)(i)

"[W]e hold that for a lawful permanent resident to be deportable under section 237(a)(l)(E)(i) of the Act, the smuggling offense must have occurred prior to, at the time of, or within 5 years of an "entry" as that term is interpreted in Rosenberg v, Fleuti. ... We conclude that the Fleuti doctrine applies to determine whether a lawful permanent resident's return to the United States constitutes an "entry" under section 237(a)(l )(E)(i) of the Act.  In light of this determination, we find remand appropriate for the Immigration Judge to apply the Fleuti doctrine to the respondent's 2005 return to the United States.  While the Immigration Judge determined that the respondent did not fall within the exceptions at section 101 (a)(l3 )(C)(i)-(vi), this inquiry is distinct from whether the respondent's departure was "innocent, casual, and brief".  The Immigration Judge's decision does not include factual findings regarding the length or purpose of the respondent's trip.  Given our limited ability to engage in fact-finding on appeal, we will remand the record for the Immigration Judge to make the requisite findings in the first instance." - Matter of X-, July 3, 2013, unpub.

[But see Board Member Patricia A. Cole, concurring and dissenting: "[T]he majority's holding that the Fleuti doctrine survives the 1996 amendments and decision to remand for fact-finding as to the length and purpose of the respondent's 2005 trip is contrary to the plain statutory language of section 101 (a)(l3)(A).  More importantly, the finding that the Fleuti doctrine survives has been specifically rejected by the Fifth Circuit.  I would therefore affirm the decision of the Immigration Judge, and terminate proceedings without remanding for a separate Fleuti analysis."