Upon returning to the U.S., Legal Permanent Residents (LPR) should not automatically surrender their green cards if asked to do so. An individual does not lose LPR status as a result of time abroad. They remain an LPR until a final order of removal is issued and the government must prove abandonment by clear, unequivocal, and convincing evidence which a higher evidentiary standard than clear and convincing. Abandonment must be signed voluntarily and there are no potential negative ramifications for refusing to sign. Neither failure to sign nor abandonment is grounds for detention. Rather, an LPR who refuses to sign must be issued a Notice to Appear (NTA) so that an immigration judge can determine whether they have lost their LPR status.
When abandonment is raised, you should offer evidence of the following: your ties to the U.S., the purpose of your visit outside of the U.S., and the expected termination date of the visit abroad or occurrence of facts showing why a date certain is or was not possible.
The burden at this stage is preponderance of the evidence, which is more likely than not (more than 51%) that you did not abandon. Totality of the circumstances are relevant and must be considered. If the officer is nevertheless, not convinced, you should ask for a hearing before an immigration judge. If your green card is confiscated, you must be provided with alternative evidence of your LPR status, such as an I-94 and/or passport stamp that says “Evidence of Temporary Residence.”
Abandonment of residence is not a ground of inadmissibility. Thus, the basis for the NTA is being inadmissible at the time of admission because LPRs travel abroad and reenter the U.S. as “special immigrants” per INA §101(a)(27). If your visit abroad was not in fact “a temporary absence” you are not admissible as a “special immigrant.” The lack of special immigrant status is what ultimately makes you removable. In this situation, the government bears the high burden of proving abandonment of LPR status by clear, unequivocal, and convincing evidence. An LPR who is placed in removal proceedings, doesn’t lose his or her status until a final order of removal is issued.
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