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Motions to Reopen Removal Proceedings Under Vartelas

Congress passed an overhaul of immigration law in 1996. These changes became known as IIRIRA, short for the Illegal Immigration Reform and Immigration Reform Act of 1996. One of the most important changes in that law was the changes in relief available for lawful permanent residents. One of the most prevalent forms of relief before the law was the availability of the INA 212(c) waiver, a form of relief that waived almost all forms of criminal convictions. The Supreme Court ruled in INS v. St. Cyr that the relief was retroactive, in other words it was still available for aliens who entered into criminal pleas before 1996, relying on the availability for that form of relief in immigration court. Another change was the change in the definition of “admission” under the Act. 

In Vartelas , the main issue was whether the pre-IIRIRA definition of “admission” still applied to lawful permanent residents with pre-IIRIRA  convictions, when returning from a casual trip abroad. Vartelas  was a permanent resident who was classified as seeking admission after his return to the United States from a short trip abroad, because of a 1994 conviction. Vartelas  argued that the definition of “admission” under IIRIRA did not apply to him and the pre-IIRIRA definition should apply. Pre-IIRIRA, courts used the Fleuti doctrine, where a lawful permanent resident returning from a casual trip abroad was not classified as an applicant for admission.  In ruling that Vartelas  was not an applicant for admission, the Supreme Court ruled that the Fleuti doctrine was applicable to Vartelas’  case since IIRIRA’s definition of admission was not retroactive. Thus, the court reversed the removal order and remanded the case to the circuit court. 

The case can be used to reopen removal proceedings where the IIRIRA definition of “admission” was applied to cases where the alien pleaded guilty to a criminal charge before IIRIRA. The case should be reopened at the last court which had administrative control. You should contact an experienced immigration attorney to help you reopen your removal case if you believe that the case could help you. 

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