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June 1, 2009: LPR Granted Waiver, Can This Person Travel?

LPR Granted Waiver, Can This Person Travel?

My close friend is from Vietnam but became a U.S. citizen. Her husband has a green card. Three years ago, he went back to Vietnam, and upon reentry, he was taken into custody and told he was not allowed back into the U.S. despite his green card. The issue was a felony he committed 15 years earlier, for which he’d served a year in prison. Apparently after 9/11 the laws were changed, and now resident aliens are deportable if they have a felony. His wife got him an attorney (who has since disappeared, which is why I’m writing this note) and, after seven months in detention, her husband was given a hearing and a judge ruled that he could stay in the U.S. The judge’s reasoning was that he had never gotten into any other trouble, held down the same job for many years since his offense, and had three children who were U.S. citizens. (actually, my friends isn’t officially his wife — she is Vietnamese also and they had a Vietnamese religious ceremony but never got a marriage certificate in the U.S.)

Here’s my question: His mother just died in Vietnam, and he needs to go back and settle the estate, but he is terrified that he could be detained again and have to go through the same process of trying to gain permission to stay in the U.S. (possibly with a worse outcome). Is this a possibility, or if he brings a copy of the paperwork from the previous hearing, will he be OK to leave and come back? Thank you for your help.
— Linda

As your friend learned firsthand, United States Department of Homeland Security (USDHS) has increased its enforcement efforts at the ports of entry into the United States. As you correctly stated, such increased enforcement was created and is now being implemented as a result of the 9/11 terrorist attacks. Due to a variety of newly implemented enforcement measures, it is now commonplace for longtime permanent residents who have old criminal convictions and who are returning from a trip abroad to be questioned about their criminal past. Whereas in the past the old conviction would go unnoticed and unquestioned and the permanent resident would be admitted into the United States, USDHS now has access to many government databases which reveal past criminal activity. Once such activity shows up at entry, the persons entry may be deferred until a later date.

Deferring that permanent resident’s admission to the United States using a process called “deferred inspection.” During this deferred inspection, USDHS will request that the permanent resident bring certified copies of any and all records that relate to the criminal conviction(s) in question to a deferred inspection office at a later date. If the conviction was for a `removable’ offense, the USDHS will issue a charging document, also known as a Notice to Appear (NTA), effectively initiating removal proceedings. The charging document will set forth the reasons for the removal proceedings. The permanent resident will be scheduled for a removal hearing before an immigration judge. Depending on the type of conviction, the person may or may not have relief available from removal. It appears that in your friend’s case that he was eligible for relief from deportation and the immigration judge granted the relief. The Judge’s grant of relief effectively waives any future negative consequences of the conviction and confirms the permanent resident’s status as such.

Thus, assuming otherwise your friend is otherwise eligible, your friend should be able to travel outside the United States without having to worry about another removal hearing. Although the computer database at the airport should reveal the judge’s order granting the relief, it would be wise to travel with the judge’s order just in case the database is not updated and/or the officer wants confirmation of the decision. If your friend plans to travel for an extended period of time (more than 6 months), it may be wise for him to apply for a travel document before he departs. If your friend has additional questions or concerns, it would be wise for him to consult with an experienced immigration attorney.

Michael Shane and Evan Shane, Immigration Attorneys

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