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Court Affirms Right of Certain LPRs to Travel Abroad

Vartelas v. Holder, 565 U.S. __, 132 S. Ct. 1479 (2012)

In a 6-3 decision, the Supreme Court ruled that INA § 101(a)(13)(C)(v) -- which states that lawful permanent residents (LPRs) are regarded as seeking "admission" to the United States if they previously committed certain criminal offenses -- does not apply retroactively to guilty pleas that were entered before the law took effect. In so doing, the Court overturned a lower court decision holding the law applied to convictions occurring prior to the law's 1997 effective date, when LPRs possessed the right to take temporary trips abroad without fear of being denied rentry upon return. The Legal Action Center has issued a Practice Advisory offering strategies for LPRs affected by the decision.

The case arose from an amendment in the Illegal Immigration Reform and Immigrant Responsibility Act that replaced the statutory definition of "entry" with the concept of "admission." Prior to the amendment, the Supreme Court held in Rosenberg v. Fleuti, 374 U.S. 449 (1963), that LPRs were not considered to be making an "entry" -- and therefore would not be subject to the grounds of excludability -- upon returning from a trip abroad that was "innocent, casual, and brief." Following the amendment, however, LPRs who traveled abroad were regarded as seeking "admission" if they had committed an offense listed in INA § 212(a)(2), such as a crime involving moral turpitude. 

Citing the longstanding presumption against the retroactive application of new laws, the majority held that Congress did not intend for the amendment to apply to convictions entered prior to IIRIRA's 1997 effective date, when many LPRs pleaded guilty to crimes with the understanding that their ability to travel abroad would continue to be governed by the so-called Fleuti doctrine. The Court noted that the Board of Immigration Appeals has held the Fleuti doctrine did not survive the amendments in IIRIRA, but it declined to address the question.