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The Supreme Court of the United States will hear a case addressing how the Department of Homeland Security (DHS) may treat lawful permanent residents who re-enter the U.S. after traveling abroad while having pending criminal charges. The court will decide whether these Green Card holders should be classified as full permanent residents upon their return.
This case stemmed from an incident in which border officials classified a Chinese Green Card holder as an applicant for admission when he attempted to reenter the U.S., because he had a pending trademarkcounterfeiting charge against him. He was subsequently paroled into the U.S., which triggered removal proceedings when his charge later led to a conviction for a crime of moral turpitude.
Who Is an Applicant for Admission?
Unlike a lawful permanent resident, an applicant for admission is a noncitizen seeking lawful entry into the U.S. Such individuals do not have the right to reside permanently in the country and are instead subject to inspection and possible inadmissibility when attempting to enter.
The Second Circuit Court of Appeals and the Board of Immigration Appeals (BIA) went to battle about the issue. The Court held that a pending charge does not constitute clear and convincing evidence to treat a returning Lawful Permanent Resident as an applicant for admission. It also found that the Immigration & Nationality Act explicitly states that lawful permanent residents may be classified as applicants for admission only if they have actually committed a crime involving moral turpitude, not merely been charged with one.
The Court of Appeals concluded that DHS misclassified the Green Card holder and consequently canceled his removal order. This ruling conflicted with a 2012 BIA decision that allowed DHS to rely on subsequent convictions to justify classifying a permanent resident as removable.
Meanwhile, the Board of Immigration Appeals maintained that if a Lawful Permanent Resident has a pending charge, they may be treated as an applicant for admission into the U.S. This interpretation would change the classification that DHS has used to define Lawful Permanent Residents.
Who Might This Decision Affect?
If the Supreme Court sides with the BIA, this could affect any LPR who attempts to return to the U.S. with a pending criminal charge against them. Immigration officials would have the right to classify you as an applicant for admission, when you are reentering the U.S. with a pending charge. They would effectively subject you to removal proceedings.
If you are an LPR with a pending criminal charge, and you plan to travel outside the U.S., or if you have questions regarding another immigration matter, contact U.S. Immigration Law Counsel for a strategy session to discuss your case.
