RETURNING GREEN CARD HOLDER WITH CRIMINAL HISTORY
A criminal record can affect a returning lawful permanent resident differently from an ordinary visa holder. The first question is whether INA §101(a)(13)(C) permits CBP to treat the returning LPR as an applicant for admission.
INA §101(a)(13)(C) establishes the general rule that a returning lawful permanent resident is not regarded as seeking admission unless one of six statutory exceptions applies.
One of those exceptions, §101(a)(13)(C)(v), concerns an LPR who has committed an offense identified in INA §212(a)(2), subject to the relief language contained in that provision.
The criminal record must be analyzed under the immigration statute. An arrest label, offense name or assumption that a crime is “serious” is not enough to determine the immigration consequence.
In Matter of Rivens, the Board of Immigration Appeals held that DHS bears the burden of proving by clear and convincing evidence that one of the six INA §101(a)(13)(C) exceptions applies before a returning LPR is treated as an applicant for admission.
That threshold issue can be crucial because the grounds of inadmissibility apply differently once the LPR is treated as seeking admission.
For the CIMT and controlled-substance provisions in INA §212(a)(2)(A)(i), the statute covers certain convictions but also certain legally sufficient admissions of committing the offense or the acts constituting its essential elements.
An arrest alone is therefore different from a conviction, but statements made during inspection can still require careful analysis.
A finding that a returning LPR is an applicant for admission does not itself erase lawful permanent resident status. Depending on the case, DHS may place the person in immigration proceedings where the inadmissibility charge and any defenses or relief can be litigated.
The traveler should also distinguish any Form I-407 abandonment issue from a criminal inadmissibility case.
No. The exact offense must be analyzed under the relevant immigration statute.
Potentially, where the person has a single qualifying CIMT that satisfies the statutory requirements. The exception does not apply to every criminal ground.
Yes. Controlled-substance offenses require especially careful analysis because the statutory waiver options can be very limited.
Where criminal history may affect admissibility, reviewing the certified record before international travel is generally far safer than relying on memory or the offense name alone.
These statutory and government materials provide the principal legal framework discussed on this page.
The statute of conviction and record of conviction can determine whether a returning green card holder is treated as seeking admission and whether a defense or waiver may apply.