October 18, 2014
A lifelong dream for so many individuals around the world is the opportunity to become a lawful permanent resident (LPR) (“green card holder”) of the United States. As an LPR, the scope of opportunities is expansive and the path to US citizenship is paved. Because LPR status is so incredibly important, it is extremely problematic when situations arise that may lead to an assertion by the Department of Homeland Security (DHS) that an individual has abandoned his LPR status.
Under the immigration laws, an LPR is generally not suppose to be outside of the US for more than 1 year. As well, even if an LPR returns to the US before 1 year, there is still a risk of being found to abandon permanent residency if the times in the US are for very short periods.
It is a common misconception that an LPR automatically loses their green card if they are outside the US for too long. Rather, in order for an individual’s green card to be cancelled or revoked, the DHS must take formal procedures to prove that an individual has abandoned his permanent residency.
Even if an LPR has been outside the US for more than 1 year, the DHS must allow an LPR to enter the US. If the DHS wishes to seek cancellation of an individual’s green card, the DHS must then initiate removal proceedings against the individual since only an immigration judge can determine whether an LPR has abandoned his permanent residency.
In determining whether an individual has abandoned his permanent residency, the judge will consider any and all factors regarding why the individual was outside the US for so long. The 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.
Individuals must therefore be fully prepared to explain the reason(s) for their extended absence from the US. This is especially important when entering the US as statements made at the port of entry will be used in court proceedings. The explanation must effectively communicate the individual’s desire to return to the US despite the long absence. For example, if an LPR remained overseas for several years to complete his education, evidence of the studies together with any other facts that show his intention to return to the US upon completion of those studies should be presented. 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 5 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 an LPR with his parents when he was 13 years old. After only about 7 months, Mr. Khoshfam and his parents returned to Iran in order to sell off their property. However, the September 2001 terrorist attacks prevented them from returning. Then, in November 2001, Mr. Khoshfahm’s grandfather had a heart attack, so he and his parents had to stay in Iran in order to care for him. When Mr. Khoshfahm turned 18, he returned to the US and presented his green card, stating that he “always wanted” to return to the US. Although he had been in the US for only 7 months and outside the US for about 5 years, the judge ultimately allowed Mr. Khoshfahm to keep his green card.
Acquiring LPR status in the US is often a very difficult, lengthy and expensive process. As such, the threat of losing LPR 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 faced with the allegation of abandoning permanent residency vigorously defend themselves in order to maintain their opportunities of achieving their dreams in the United States.
For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists.