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56 Notre Dame Law. 696 (1980-1981)
Rosenberg v. Fleuti: Reentry of Aliens Remains Unsettled

handle is hein.journals/tndl56 and id is 698 raw text is: Rosenberg v. Fleuti: Reentry of Aliens Remains Unsettled I. Introduction Entry is a term of art for purposes of United States immigration law.I An alien making an entry into this country must comply with rigid admission stan- dards. Reentry is a subcategory of entry which deals with aliens previously ad- mitted to the United States who seek to return after a temporary absence. The reentry doctrine subjects returning aliens to the same admission requirements as first-time entrants. Failure to meet these requirements may result in exclusion at the time of attempted reentry or deportation on the ground that reentry should not have been permitted.2 In 1963 the Supreme Court of the United States, in Rosenberg v. Fleu/i,3 faced the issue of whether a resident alien's return to the United States after a tempo- rary absence constituted an entry for immigration purposes. The Court defined entry to include only those returns to the United States by resident aliens which followed departures made with an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence.4 Con- trary to its intended effect, the Feuti decision has led to confusion and conflicting interpretations in the lower courts.5 This note will examine the present status of the Fleuti doctrine and the reasons for its failure to provide courts with a worka- ble judicial standard. II. Historical Setting of Rosenberg v. Fleuti The reentry doctrine was created by case law during the first half of this century.6 The most commonly recognized pronouncement of the doctrine, that 1 See C. GORDON & E. GORDON, IMMIGRATION LAW & PROCEDURE § 2.3(a) (desk ed. 1980). 2 Compare 8 U.S.C. § 1182(a) (1976) (grounds for exclusion) with 8 U.S.C. § 1251(a) (1976) (grounds for deportation). Reentering aliens may be excluded or deported because they (1) are insane at the time of reentry, (2) suffered a previous attack of insanity, (3) have admitted the elements of a crime of moral turpitude for which they were never convicted or (4) are otherwise ineligible for citizenship. 8 U.S.C. §§ (a)(l), (3), (9), (22) (1976). None of these conditions would subject the alien to deportation if he had remained in the country after his initial entry. See generallv I C. GORDON & H. ROSENFELD, IMMIGRATION LAW & PROCEDURE §§ 2.32-.50 (rev. ed. 1980); Comment, Exclusion and Deportation of Resident Aliens: The Re-entqy Doctrine and the Need for Reform, 13 SAN DIEGO L. REV. 192 (1975). 3 374 U.S. 449 (1963). 4 Id at 462. 5 Cf Longaria Castaneda v. INS, 548 F.2d 233 (8th Cir. 1977) (returning alien deported for assisting in the illegal entry of aliens); Ferrano v. INS, 535 F.2d 208 (2d Cir. 1976) (remand of deportation order to determine whether reentry without inspection affects resident alien status); Lozano-Giron v. INS, 506 F.2d 1073 (7th Cir. 1974) (returning alien deported after being apprehended smuggling counterfeit United States currency into the country); Palatian v. INS, 502 F.2d 1091 (9th Cir. 1974) (returning aliens' attempt to smuggle marijuana into the country after two and one-half days in Mexico held an entry even if depar- ture was for innocent purposes); Vargas Barnelos v. INS, 466 F.2d 1371 (5th Cir. 1972) (returning alien not deported despite conviction for assisting in the illegal entry of aliens). See general.y Gordon, Recent Develop- ments in Judicial Review of Immigration Cases, 15 SAN DIEGO L. REV. 9, 13-20 (1977). 6 The Supreme Court in Fleuti recognized the reentry doctrine as originating in Lewis v. Frick, 233 U.S. 291 (1914) and cited United States ex rel. Claussen v. Day, 279 U.S. 398 (1929), United States ex rel. Polymeris v. Trudell, 284 U.S. 279 (1931), and United States ex re. Stapf v. Corsi, 287 U.S. 129 (1932), as cases in the line of precedent. 374 U.S. at 453.

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