Most permanent residents are aware that while they are authorized to stay indefinitely inside United States, they risk losing their status if they remain outside for an extended period of time. For all practical purposes, a green card holder will likely be refused admission if outside the US for one year or more under the theory of abandonment. As covered in previous articles, one way to avoid being charged with abandonment is to proactively file for a re-entry permit before leaving; the re-entry permit will authorize a permanent resident to remain outside the country for up to two years. An even more conservative approach is to avoid trips that are 180 days or greater. Under the Immigration and Nationality Act, an individual technically applies for “admission” to the United States each and every time he/she travels outside for 180 days or more. As such, the individual is exposed to greater scrutiny by Customs and Border Protection which is the agency charged with determining admissibility to the US. Depending on one’s answers and proof (or lack thereof) of ties to the US, one could possibly be deemed to have relinquished his/her green card.
However, like most things in the law, it’s not that black and white. The issue is actually more complicated than heeding to a 180 or 365 day rule. And a recent non-precedential decision issued by the Board of Immigration Appeals illustrates just how fact-sensitive these situations can be. The case is In Re: Ka I. Lei, A046 594 161 (BIA March 8, 2017) and while not binding, the holding nevertheless illuminates what the law actually is regarding this issue. In this particular matter, the respondent was a 26 year old citizen of China who, along with her mother, was admitted as a green card holder back in June of 1998. Due to her father’s ailing health, she and her mother returned to Macau several times, and at one stretch, resided there from 2003 to 2006. When she attempted to return in 2006 with her green card, she was, not surprisingly, placed into removal proceedings. From there, the immigration court sided with the government and deemed her inadmissible despite strong circumstantial evidence that she never intended to abandon her residence here. Ultimately, the BIA reversed the lower court and allowed Ms. Lei to retain her green card. In arriving at its decision, the court surveyed the statute and caselaw pertaining to abandonment and applied the facts to the legal standard.
As laid out by the court, the physical absence of an individual outside the United States is not always dispositive. (In this case, the person was out for 33 months.) Rather, the test is whether a person’s extended trips outside the US constitute “temporary visits abroad.” The court notes: “a trip is ‘temporary’ if it is 1) ‘relatively short,’ or 2) if not short, the respondent had ‘a continuous, uninterrupted intention to return to the United States during the entirety of [the] visit.” Furthermore, with respect to intent, the court will analyze whether the individual intended to return within a relatively short period of time, not that he/she had the ultimate intention to return. Some factors that are considered while evaluating the above include:
· Length of time outside
· Location of family ties
· Location of property
· Location of employment
In this case, some of the circumstantial evidence adducing Ms. Lei’s intent to return was her attendance at an English only school; a 1-way ticket to the US; 6 large suitcases; and her testimony regarding her attachment to the US. Another important point worth noting was the lower court’s misstating the burden of proof, wrongly placing the onus on the respondent. Rather, where the only ground of inadmissibility is a permanent resident’s lack of an immigrant visa, the burden of proof remains on the Department of Homeland Security to establish by clear and convincing evidence that a person does not have a continuous, uninterrupted intent to return to the US.
Other Indicia of Abandonment
Prolonged absences outside the US are not the only way that a permanent resident can be accused of abandoning residence. Two other acts that may give rise to a claim include:
· Failing To File Taxes While Outside The US. Some permanent residents are under the mistaken impression that since they are not physically inside the US, they are not legally obligated to file taxes. Depending on certain tax rules regarding income, which includes worldwide income, a person may indeed be required to file taxes and not doing so may possibly jeopardize their status under these circumstances
· Declaring “Nonimmigrant” On Tax Returns. Some permanent residents attempt to reduce their tax liability by filing as non-resident aliens. Filing this way may be construed by DHS as intentional abandonment of one’s permanent residence.
Given the criteria considered in determining an abandonment case, not every extended absence from the US will automatically result in revocation of one’s green card. Nevertheless, prolonged trips without proper planning may result in deferred inspections and in the worst case, initiation of removal proceedings. To learn more about what type of evidence one needs to adduce to contest an allegation of abandonment, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.