March 13, 2013
A lifelong dream for so many individuals around the world is the opportunity to become a lawful permanent resident of the United States. As a permanent resident, the scope of opportunities is expansive and the path to US citizenship is paved. Because permanent resident status is so incredibly important, it is extremely problematic when situations arise that may lead to the Department of Homeland Security (DHS) asserting that an individual has abandoned his/her permanent residency in the US.
Under the immigration laws, a permanent resident is generally not suppose to be outside of the US for more than one year. As well, even if a permanent resident returns to the US before one year, there is still a risk of being found to abandon permanent residency if the stays in the US are for very short periods of time.
In order for the DHS to terminate an individual’s green card, the DHS must take formal procedures to prove that an individual has in fact abandoned his permanent residency in the US. This remains true even for those who have been outside the US for many years. For permanent residents who have been outside the US for many years, the law requires that an individual must be allowed to enter the US so that an immigration judge can make a determination as to whether the individual has in fact abandoned his permanent residency. In other words, even when a permanent resident has been outside the US for several years, he/she must be given the opportunity to enter the US in order to provide his/her explanations for the extended absence to an immigration judge.
In determining whether an individual has abandoned his permanent residency, the immigration judge will consider any and all factors regarding whether the stay outside the US was for a temporary visit. If the length of the absence from the US is rather long, then the immigration judge will consider whether the individual maintained “a continuous, uninterrupted intention to return to the United States during the entirety of his visit.” Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997). When assessing a matter, so long as an individual has a colorable claim as a returning resident, the burden is on the US government to prove that an individual has abandoned his permanent residency with “clear, unequivocal, and convincing evidence.” Id.
Given that the burden of proof is on the DHS, it is important that individuals faced with the risk of losing permanent resident status based on abandonment be able to effectively communicate the reason(s) why the extended absence from the US is not reflective of an intent to abandon permanent residency in the US. For example, if a permanent resident child remained in his foreign country for several years in order to complete his studies, this should be communicated to the DHS, as well as any other facts that show it was the intention of the student to return to the US upon completion of those studies, such as parent(s) who remained in the US, any re-entry permits obtained, etc. Another example is an individual who could not return to the US due to health-related issues that prevented travel and/or required medical treatment abroad.
Even when an absence from the US is as long as five years, the courts have decided that an individual had not abandoned his permanent residency. Khoshfahm v. Holder, No. 10-71066 (9th Cir. 2011). The case involved an Iranian national who had entered the US in 2001 as a permanent resident with his parents. He was thirteen years old at the time. After only about seven months, Mr. Khoshfam and his parents returned to Iran in order to sell their property so that they would have money when they returned to the US. Soon after their arrival in Iran, however, the September 2001 terrorist attacks occurred, which prevented them from purchasing plane tickets. Then, in November 2001, Mr. Khoshfahm’s father had a heart attack that prevented him from traveling for several years. Mr. Khoshfahm and his mother therefore also remained in Iran.
When Mr. Khoshfahm eventually turned 18 and could travel by himself to the US, he sought to enter the US using his permanent resident card, asserting that it was always his intention to return to the US. Mr. Khoshfahm was allowed to enter the US and was ultimately successful in demonstrating that he “always wanted” to return to the US. Accordingly, even though he had been in the US for only seven months and outside the US for about five years, Mr. Khoshfahm was able to keep his green card.
Acquiring lawful permanent resident status in the US is often a very difficult, lengthy and expensive process. As such, the threat of losing permanent resident status is a matter that must aggressively be guarded against. Situations arise that prevent an individual from returning to the US, despite having the intention and the desire to do so. It is therefore important that any individuals challenged with the allegation of abandoning permanent residency vigorously defend themselves in order to maintain their opportunities of achieving their dreams in the United States.