How do the immigration laws and the U.S. Constitution apply to lawful permanent residents (i.e., legal immigrants) who leave the United States and then return?

In Rosenberg v. Fleuti (1963) a lawful permanent resident from Switzerland visited Mexico for a few hours and, upon his return, was charged with being excludable because he had committed a “crime involving moral turpitude” before he left the country; the U.S. government later claimed that he was also excludable because he was homosexual.  To avoid a harsh result, as well as to avoid deciding difficult constitutional questions, the Supreme Court interpreted the immigration statute to mean that Fleuti’s “innocent, casual, and brief” departure from the United States was not “meaningfully interruptive” of his lawful permanent residence and thus he was not seeking “entry” (and thus admission) into the country.  Under the Court’s reasoning, Fleuti therefore could not be denied admission on the exclusion grounds applicable to initial entrants.

On January 18 2012, in Vartelas v. Holder the Court will hear oral arguments in a removal case that raises an issue that has confounded the courts, namely, how the immigration laws and the U.S. Constitution apply to lawful permanent residents (i.e., legal immigrants) who leave the United States and then return.

In 1979, Panagis Vartelas, a native of Greece, came to the United States on a student visa to attend Queens College.  After marrying a U.S. citizen in 1985, he became a lawful permanent resident in 1989.  Vartelas and his wife, who later divorced, had two U.S. citizen children.  He owned an auto body shop in Queens, New York.  After his arrest on charges that he had assisted his business partner in preparing counterfeit traveler’s checks – conduct for which he did not receive any economic benefit, he pleaded guilty in 1994 to conspiring to make or possess a counterfeit security in violation of federal law and was sentenced to imprisonment for four months.

In 1996, Congress added Section 101(a)(13)(C)(v) to the INA.  That statute provides that a lawful permanent resident who returns from a trip out of the United States “shall not be regarded as seeking an admission” unless he “has committed an offense identified in” Section 212(a)(2) of the INA, which includes crimes involving moral turpitude.  The change in the law helped lawful permanent residents without criminal convictions who traveled abroad because it did not treat them as seeking admission (and thus like initial entrants subject to the inadmissibility grounds).  The amendment was no help to Vartelas, however.  Because counterfeiting is a crime of moral turpitude, a ground for inadmissibility, Vartelas was inadmissible under Section 101(a)(13)(C)(v) of the INA.

On January 29, 2003, Vartelas returned to the United States from a week-long trip to Greece, where he had gone to assist his parents with their business.  An immigration inspector questioned him about his 1994 criminal conviction.  Vartelas later was served with a notice to appear for removal proceedings on the ground that he was inadmissible as an alien who sought entry into the United States after being convicted of a crime of moral turpitude.  Under the applicable law, he would not have been subject to deportation if he had remained in the United States and had not left the country to visit his parents in Greece.

The immigration court ordered Vartelas removed from the United States.  The Board of Immigration Appeals (BIA) agreed.   The Second Circuit denied the petition for review of the BIA ruling. The court of appeals agreed with the Board that the 1996 amendments had abrogated the Court’s holding in Rosenberg v. Fleuti.  The Second Circuit further concluded that application of Section 101(a)(13)(C) (v) to Vartelas’s 2003 trip to Greece was not impermissibly retroactive.  In so doing, the court of appeals recognized that its holding was contrary to that of the Fourth and Ninth Circuits.