2012 Vartelas Decision Potentially Affects Lawful Permanent Residents in Immigration Court

The Supreme Court of the United States recently decided a major case last week that potentially affects many removal cases. The decision in Vartelas v. Holder, 566 U.S. _______ (2012), concerns the legal doctrine of retroactivity, and whether it is fair to consider a Lawful Permanent Resident who is returning from a brief trip abroad as an applicant for "admission." In the case at hand, Mr. Vartelas had pled guilty to a crime involving moral turpitude before April 1, 1997 (the effective date of IIRIRA, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996). He subsequently took several brief trips to Greece. Upon his last return in 2003, he was placed in removal proceedings as a lawful permanent resident applying for admission who was determined to be inadmissible due to his 1994 conviction. Prior to IIRIRA, an alien in Mr. Vartelas's situation would conceivably have been able to travel abroad and reenter the US despite a criminal conviction under the Fleuti doctrine if the trip abroad was considered "innocent, casual" and not "meaningfully interrupt[ive]." However, after IIRIRA, that same permanent resident would be making an application for admission, and could be denied entry due to being "inadmissible" on account of the criminal conviction. The Supreme Court, in a nutshell, essentially held that the Fleuti doctrine continued to apply to Mr. Vartelas's short trip: the immigration consequences of his brief trip are governed not by IIRIRA but by the law in effect at the time of his conviction, which in this case, was pre-IIRIRA. The fact that Mr. Vartelas would suffer a "new disability" which did not exist at the time he was convicted, in fact, presents a case for application of the "antiretroactivity principle."

The impact of this decision cannot be understated. The holding confirms that the Fleuti doctrine did survive IIRIRA and in fact applies to lawful permanent residents with convictions that predate the passage of IIRIRA. This may potentially extricate lawful permanent residents with pre-IIRIRA convictions currently charged with inadmissibility upon returning from a brief trip abroad. It may also benefit those individuals who have already been deemed inadmissible due to retroactive application of IIRIRA to their pre-IIRIRA convictions. Every case is of course fact sensitive, but the implications of this decision certainly stand to change the legal boundaries of who and who is not subject to removal.