Fleuti: A Couple of Hours in Mexico and the Rule Congress Later Rewrote

If you hold a green card and have a criminal record, even a quick trip across the border can put you in removal proceedings when you come back. For a long time, a 1963 Supreme Court decision protected permanent residents who took innocent, casual and brief trips. Congress changed the statute in 1996, and today the old protection helps mainly people whose convictions came before that change. The history still explains the rule, and the rule can decide whether a short trip costs you your status.

The decision is Rosenberg v. Fleuti, 374 U.S. 449 (1963), No. 248, decided June 17, 1963. The government asked the Supreme Court to reinstate a deportation order the Ninth Circuit had set aside as resting on an unconstitutionally vague law. The Court did not decide that question. By 5 to 4, in an opinion by Justice Goldberg, it vacated the Ninth Circuit’s judgment and sent the case back on a narrower statutory ground.

An afternoon in Ensenada

Fleuti, a Swiss national, was admitted for permanent residence on October 9, 1952. He stayed in the United States continuously except for a trip of “about a couple hours” to Ensenada, Mexico, in August 1956. In April 1959 the government sought to deport him on the theory that he had been excludable when he came back from that afternoon trip.

The first charge was a conviction for a crime involving moral turpitude. That order fell apart because the offense turned out to be a petty one. The government then filed a new charge: that he had been excludable at his 1956 return as a person “afflicted with psychopathic personality” because he was gay. It was critical to the government that the 1956 return count as an “entry,” because that exclusion ground did not apply when he was first admitted, before the 1952 Act took effect. A deportation order followed, and the Board of Immigration Appeals dismissed his appeal.

A federal district court ruled for the government. The Ninth Circuit set the order aside, holding the term unconstitutionally vague as applied to him.

The Court turned to a question no one had raised

The Supreme Court took the case to decide whether the law was constitutional. Instead it invoked the principle that courts should not decide constitutional questions unless they have to. It found a threshold issue of statutory meaning: Was the return from Ensenada an “entry” at all?

The statute defined entry as “any coming of an alien into the United States,” but a permanent resident did not make an entry if the departure “was not intended or reasonably to be expected” or the time abroad was not voluntary. Early cases had read entry harshly. In one, a man with decades of residence was held excludable after a short visit to Cuba. Lower courts and the Supreme Court had then begun to pull back. Judge Learned Hand refused to treat as an entry an overnight train trip from Buffalo to Detroit that ran through Canada, with no showing that the passenger knew it would, writing that residence should not be subject to “meaningless and irrational hazards.” In a later case, the Supreme Court refused to treat a sailor rescued after his ship was torpedoed as making an entry when he came back from Cuba. Congress, the Court concluded, wrote the 1952 definition to ease that harshness.

Innocent, casual and brief

The Court reasoned that the exception should be read to protect residents who are only briefly away. To subject a person who “steps across a border and, in effect, steps right back” to exclusion for a condition that could not have supported deportation had he stayed home was to leave him at the mercy of chance. The trip was often a trap the person would never see.

The test it announced looked at whether the person intended to depart “in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” The Court named three factors, while leaving room for others: how long the person was gone, the purpose of the trip, and whether travel documents had to be obtained. A purpose contrary to immigration policy would make the interruption meaningful. It then said “an innocent, casual, and brief excursion by a resident alien outside this country’s borders may not have been ‘intended’ as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an ‘entry’ into the country on his return.”

The Court said Fleuti, so far as the record showed, was among those to be protected, but it did not decide his case. The record had little about the trip, so it remanded for the parties to address the entry question. If he had not “intended” a departure, the order would fall and no one would need to reach the constitutional issue.

The dissent

Justice Clark, joined by Justices Harlan, Stewart and White, said the Court had rewritten the statute. He dissented “because ‘statutory construction’ means to me that the Court can construe statutes but not that it can construct them,” noting that Fleuti himself had not argued the point. Four years later, in Boutilier v. INS, 387 U.S. 118 (1967), the Court, in another opinion by Justice Clark, held that Congress had meant “psychopathic personality” to include homosexual people. That exclusion is no longer in the immigration statute.

What is left of Fleuti

In 1996 Congress replaced “entry” with “admission.” Under current 8 U.S.C. § 1101(a)(13)(C), a lawful permanent resident is not regarded as seeking admission unless one of six listed exceptions applies. They include abandoning status, a continuous absence of more than 180 days, illegal activity after leaving and having committed an offense identified in section 1182(a)(2), which covers many crimes.

The Ninth Circuit held in Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007), that the statute abrogated Fleuti, but that the change did not apply retroactively to someone who pleaded guilty before it took effect. The Supreme Court reached the same bottom line on retroactivity in Vartelas v. Holder, 566 U.S. 257 (2012). A permanent resident convicted of a listed offense before the 1996 law took effect on April 1, 1997, as Vartelas was by guilty plea, can still invoke Fleuti for an innocent, casual and brief trip. The Court noted the Board’s view that the 1996 law superseded Fleuti. Because Vartelas did not challenge that view, the Court assumed without deciding that it was correct, and it resolved the case on retroactivity.

So Fleuti now has two lives. For someone convicted before the 1996 law took effect, it still governs brief travel. For anyone else who has committed an offense listed in section 1182(a)(2) and has not since been granted relief under section 1182(h) or 1229b(a), the short length of a trip no longer protects against being treated as seeking admission. A permanent resident without any of the listed problems is protected by the statute’s text, not by Fleuti.

What this means before you leave the country

These steps are our practical advice, based on these decisions and the current statute.

• Before any trip, have a lawyer review your record. Even a very short trip can matter if you have committed an offense listed in section 1182(a)(2). For a crime involving moral turpitude, the government still needs a conviction or admission to show that you are inadmissible.
• Check when you pleaded or were convicted. A plea or conviction before the 1996 law took effect on April 1, 1997, may preserve Fleuti. Get the dates from the court record.
• Keep trips under 180 days. Longer absences trigger a separate exception, and long absences raise other questions about abandonment.
• If you are stopped on return, be careful what you say. An admission can matter, because the ground of inadmissibility for a crime involving moral turpitude also reaches a person who admits committing the crime. Ask for a lawyer and read everything before you sign it.
• In removal proceedings, hold the government to its burden. Under Board precedent, the government must show at the hearing, by clear and convincing evidence, that you fall within one of the exceptions. If the government meets that burden, you generally bear the burden of proving that you are admissible.
• Ask about relief. Some permanent residents can seek cancellation of removal or a waiver. Eligibility depends on the offense and the timing.

Later developments

After this article’s date, the Supreme Court decided Blanche v. Muk Choi Lau, 609 U.S. 1 (2026), on June 23, 2026. It held that a border officer does not need clear and convincing evidence that a permanent resident committed a crime involving moral turpitude before treating the person as seeking admission. The officer there acted on a pending criminal charge and paroled the resident in while that case proceeded. The Court also rejected reliance on a footnote in Vartelas suggesting that a conviction or admission was required at that stage. Under Board of Immigration Appeals precedent, the government must establish at the removal hearing, by clear and convincing evidence, that the resident falls within the exception. The Court applied that rule to the facts without deciding whether the Board is correct, and it left open whether any burden applies at the border and who would bear it.