Dealing with Claims of Abandonment of LPR Status
CBP and Misunderstandings of What Constitutes LPR Status Abandonment
A longstanding issue that often confronts lawful permanent residents (LPRs) is traveling outside of the U.S. and returning every six months, which has long been viewed as an issue by Customs and Border Protection (CBP) that could correspond to an abandonment of LPR status. Often, these LPRs are asked to surrender their green cards and sign a Form I-407, signifying this abandonment. These demands tend to be erroneously portrayed as mandatory and the CBP agent's reason in doing so in the first place is often unjustified.
Abandonment of permanent residency is not decided solely on the grounds of the amount of time spent outside the U.S. Instead, domicile is the major issue for CBP inspectors, so the applicant should have evidence of where he or she lives.
So what is to be done if confronted by the CBP in the claim that the time spent abroad constitutes abandonment? First of all, let's look into what is viewed as abandonment of LPR status.
What Constitutes Abandonment of LPR Status
In different meetings between the American Immigration Lawyers Association (AILA) and CBP representatives, it has been confirmed that decisions concerning abandonment of permanent residency are less centered on the amounts of time spent outside the U.S. and more on where the individual's residence is actually located.
The CBP Inspector’s Field Manual (“IFM”) notes that other indicators of possible abandonment include:
Employment abroad
Immediate family members who are not permanent residents
Arrival on a charter flight where most passengers are non-residents with return passage
Lack of a fixed address in the U.S., or
Frequent prolonged absences from the U.S.
In addition, CBP officers will look into the following circumstances:
How many years the person has lived in the U.S.
Where family members live
Whether U.S. taxes have been paid
In questionable cases, the IFM advises officers “to ask for other documentation to substantiate residence, such as a driver’s license and employer identification cards.”
What to Do When Confronted with Abandonment of LPR status by CBP
At the time of an LPR's returning to the U.S. and being caught in such a situation, he or she should not automatically surrender his or her green card upon the CBP agent's request.
1. Challenging the allegations of the CBP. In combating allegations of abandonment with the CBP agents, evidence should be presented pertaining to:
The LPR's ties to the U.S.
The expected termination date of the visit outside the U.S.
If it is impossible to give an exact date, then facts should be presented as to why this is the case.
Note: See Matter of Kane, 15 I&N Dec. 258 (BIA 1975).
The burden of proof placed on the LPR is a preponderance of evidence, meaning that there is more than a 51% probability that there was no legally justifiable abandonment (see Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994)). However, if the CBP agent decides to confiscate the green card regardless, then the individual must be issued alternative evidence of their retained LPR status through means such I-94 record or a stamp on the LPR's passport stating "Evidence of Temporary Residence."
2. When the LPR status is actually lost.
It is important to understand that an individual does not lose LPR status as a result of time abroad.
An LPR retains status up until the point that a final order of removal is issued, by which the government must prove the LPR's abandonment by means of clear and unequivocal evidence (see Matter of Huang, 19 I&N Dec. 749 (BIA 1988)).
Moreover, a Form I-407 to give up LPR status must be signed voluntarily, there are no legal or immigration related consequences for not doing so.
Neither failure to sign nor abandonment is grounds for detention. Rather, an LPR who refuses to sign Form I-407 must be issued a Notice to Appear (NTA) so that an immigration judge can determine whether they have lost their LPR status.
Dangers of Travelling Abroad
While these allegations and demands by CBP are often times unjustified, prolong absences from the U.S. have certain risks involved. It is therefore imperative that legal counsel be consulted before planning for a long trip abroad to advise the LPRs of their rights and responsibilities.