Anyone who is a lawful permanent resident of the United States may freely travel in and out of the country without the need to ask for special permission. The Immigration and Nationality Act establishes that when a lawful permanent resident (LPR) returns to the United States they are not seeking admission except under very limited circumstances.
However, when an LPR comes through a port of entry either by land, by sea or through the airport they may still be stopped by U.S. Customs and Border Protection (CBP) and questioned about their status as a lawful permanent resident. If the officer believes that the LPR has abandoned their status, the officer will ask the LPR to voluntarily relinquish their status or will refer them to the Immigration Judge.
Only an Immigration Judge can make a legal ruling that a lawful permanent resident has abandoned their status. As such, the LPR must be put in formal removal proceedings in order to prove that a respondent has abandoned their LPR status. In order to be successful in proving abandonment, the government must prove that the lawful resident intended to abandon their lawful resident status in the United States. Until such a ruling is made by the immigration court, the respondent in removal proceedings remains a lawful permanent resident.
There is no set formula in order to prove abandonment of status. Courts have looked at a variety of factors in determining whether or not a person has abandoned their status. Each case must evaluated individually, making sure that all factors are properly evaluated and considered. The overarching question in these cases should be whether the lawful permanent resident had an objective intent to return to the United States after a short period of time or by some fixed event that would occur prior to returning.
Some of the factors set of by the BIA and the federal courts include:
- Family ties
- Income tax returns and filing as a resident
- Club memberships and community ties in the United States
- Property ownership in the United States and abroad
- Active financial accounts
These factors alone are not the only thing to be considered but instead each case should present its specific reasons for being outside of the United States for a long period of time or in some cases to show that despite the length of time outside of the United States, there was never the intent to abandon lawful resident status. There may also be political factors, family situations, work related factors, educational considerations and many other unique factors that may be used to defend allegations of abandonment. It is important to remember that the burden is on the government to prove deportability by “clear, unequivocal and convincing evidence.”
Now more than ever, returning residents need to be prepared should they be accused of abandoning their lawful resident status at entry. It is important for LPRs to understand their rights and be prepared to advocate for themselves should they be asked to voluntarily relinquish their status by filling out a form I-407. It is important to understand that a CBP Officer cannot make the legal determination that a person has abandoned their status as a lawful permanent resident. However, if a returning resident signs a voluntary relinquishment of their LPR status (Form I-407), then it becomes final and there would be no need to place a returning resident in removal proceedings.
There have been many reports of returning residents feeling pressured to sign the I-407. Once the form has been signed, the returning resident will be returned to their home country some cases that can still be challenged even after a returning resident has relinquished their status and surrendered in their green card but it is always best to fight abandonment at entry and ask to be placed in removal proceedings to go before an immigration
Obtaining LPR status can be long and expensive. It is important to protect this status, not only for the individual, but their family and all others who rely on the LPR. If you or someone you know is facing the risk of losing their LPR status, please have them seek out an experienced immigration attorney. If you would like our advise please call our office at 513-791-1673.