Custom and Border Protection (CBP) Revokes Notice to Appear (NTA) for Client Returning From Trip Abroad

Our law firm recently worked with Customs and Border Protection (CBP) to have them return our client’s alien registration card or “green card” and to have them revoke the Notice to Appear (NTA) which had placed our client erroneously in removal proceedings. Our client was returning from a trip abroad and was detained upon inspection when their system showed incomplete information regarding a past criminal matter that did not result in a conviction.

The whole ordeal began when our client was returning from a short trip abroad. Like many times before, she presented her alien registration card or "green card" to the CBP officer upon disembarking the plane. This time though, she was in for an unpleasant surprise. As the CBP officer reviewed his computerized system, he noticed a "hit" or arrest in our client's background and placed her in secondary inspection. Secondary inspection is a separate, more thorough screening that normally lasts several hours. During this secondary inspection, the CBP officers involved misread the information on their computer, and instead of inquiring further with their legal department, they confiscated our client's green card and issued a Notice to Appear (NTA) which basically placed our client in removal proceedings.

When our client first came to see us she was understandably upset about the entire situation. Upon further review of her case, and close examination of her record, we determined that there were in fact no convictions and therefore the NTA should not have been issued. We contacted CBP and for the next several days corresponded back and forth until the issue was resolved in favor of our client. The NTA was ultimately revoked and our client got her green card back.

On a recent blog we discussed the dangers lawful permanent residents face when traveling abroad when they have previous criminal convictions. We encourage our readers to review that entry as it outlines factors that LPRs should consider before traveling. LPRs that have been arrested in the past but never convicted should travel with a certified copy of the Final Disposition Record. However, it is very important to highlight that the definition of what exactly constitutes a conviction is different for immigration purposes. Thus, a person might not have a conviction for state purposes or even have had the case expunged, and still have a conviction for immigration purposes. We will discuss the immigration definition of what constitutes a conviction on a different post. LPRs that are not sure whether they have a conviction for immigration purposes are urged not to travel until they have an experienced immigration attorney review their record.

PLEASE NOTE THAT THE RESULTS OF PAST CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN FUTURE CASES.

Attention Lawful Permanent Residents With Past Criminal Convictions: Your Trip Abroad Might Just Be The Last One

Lawful Permanent Residents with past criminal convictions should think twice before traveling abroad. Every year the Department of Homeland Security (DHS) removes scores of LPRs that were detained and placed in removal proceedings upon their return from a trip abroad. At a minimum, prospective LPR travelers should seek the guidance of an experienced immigration attorney to determine whether their particular conviction subjects them to removal from the U.S.

Although traditionally an LPR was not deemed to make a new admission into the U.S. upon his or her return if the trip was "innocent, casual, and brief", presently Congress has defined when an LPR will be regarded as seeking a new admission. This issue of "admission" is significant for an LPR who would not be subject to removal from the U.S. but who might be inadmissible upon their return from a trip abroad.

An LPR will be regarded as seeking a new admission if he or she has committed a criminal offense under the provisions of the Immigration and Nationality Act (INA) that deal with the criminal grounds of inadmissibility. The process normally works as follows. An LPR is returning from a trip abroad and presents his green card (I-551) to the Customs and Border Protection (CBP) officer in order to be admitted. The officer reviews his/her computerized system and notices a “hit” or arrest in the person’s background. They place the LPR in secondary inspection which is a separate, more thorough screening that normally lasts several hours. In this secondary inspection the LPR is questioned about, among other things, the arrest or conviction at issue. While the LPR is waiting in the secondary inspection area, CBP officers are reviewing their data and checking with their supervisors whether they have enough to charge the LPR under one of the grounds of inadmissibility. If CBP confirms that the prior conviction is not a ground of inadmissibility, they will release the LPR and return the alien registration or “green card” back to him or her.  The LPR being released should not expect an apology from CBP - none will be forthcoming unfortunately.  Also, the LPR being released should not expect not to go through the same procedure next time around. If CBP believes that the conviction renders the LPR inadmissible, or they simply can’t confirm whether it is or not, they will confiscate the alien registration card, and issue the charging document which is the Notice to Appear (NTA). The LPR is now placed in removal proceedings, and if not subject to mandatory detention, will be released to await his or her hearing before an immigration judge.

Keep in mind that the fact that an LPR with a criminal background has managed to travel back and forth for a period of time without being detained is no protection or guarantee at all. I’ve had several clients that have traveled for years without being detained, until their last trip when the CBP officer noticed their arrest and conviction. The fact that the offense might have occurred many years ago is irrelevant for removal purposes. An LPR is subject to removal from the United States for a violation of relevant immigration laws, regardless of the length of residency or the age at which it was attained. An individual who immigrated to the United States when he was a couple of months old who is now convicted of a crime at age 65 can and will be removed, depending on the nature of the conviction.

An LPR with a criminal background should weigh his or her options carefully before traveling abroad. At a minimum the person should seek the assistance of an immigration attorney in order to make an informed decision about their travel plans.  Being aware of the possible consequences gives the LPR an opportunity to not only make an informed decision, but to prepare accordingly.