Wednesday, April 18, 2012

Vartelas v. Holder... The Supreme Court Decides!

Until March 31, 1996, green card holders (LPRs) with criminal convictions who voluntarily left the U.S. for a brief, casual, and innocent trip abroad, did not face being stopped at the border. They were afforded the same due process rights as if they never left the U.S. and were in deportation proceedings. LPRs in the U.S. have more rights than those without LPR status or those outside the U.S. So, for the above described brief, casual, and innocent trip, the LPR was treated as if he had never left the U.S. and therefore enjoyed the due process rights. 

However, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996  (IIRIRA) that took effect on April 1, 1997, changed all that.  After IIRIRA, the Board of Immigration Appeals (BIA) determined that the returning LPR with a pre-1996 conviction would face being stopped at the border and not being permitted into the U.S., just as if he were never in the U.S. even if the trip was brief, casual, and innocent. 

On March 28, 2012, the U.S. Supreme Court changed that again with the decision in VARTELAS v. HOLDER. In this case, Mr. Vartelas, who pleaded guilty to conspiring to make counterfeit security in 1994, was returning from a week-long trip to Greece. He was stopped and not permitted to enter due to his 1994 guilty plea. One of the key questions here was that does guilty plea amount to a conviction as intended in the IIRIRA law? Anyway,  the U.S. Supreme Court stated that the IIRIRA 1997 rule does not apply to Vartelas and he should be afforded due process rights as if he never left the U.S. Applying IIRIRA 1997 rule to LPRs such as Vartelas would place new disabilities on LPRs when their trip overseas was brief, casual, and innocent. The Court gave examples of the types of visits that could qualify as brief, casual, and innocent: journeys abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital financial interests, or respond to family emergencies.
The implications for LPRs with pre-1996 convictions are that they are afforded higher due process rights so they have a better chance of explaining their side of the story and gain reentry to the U.S. Without this decision, such an LPR would not even get a chance to explain their situation. 

So, what to do?
If you are an LPR with a pre-1996 conviction, this higher protection may be available to you. 

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