Contesting abandonment of green card status

Jeremiah was granted permanent resident status in the United States in 2005.

In 2009, returned to Manila to visit his parents. While there, his 90-year-old mother passed away. He stayed on in Manila caring for his father, who was also in failing health, and trying to get his mother’s estate in order. After almost two years in Manila, he returned to the United States in 2011.

Upon his arrival in Los Angeles, he was issued a Notice to Appear before immigration authorities. The Customs and Border Protection inspector charged him with abandonment of his permanent residence status.

Jeremiah must now convince the immigration judge that he never intended to abandon his residency status or lose his green card. How will Jeremiah proceed with his case?

Failure to return

If a green card holder remains outside the US for more than one year, he is presumed to have “abandoned” his resident status. Unlike other travelers, however, the immigrant or green card holder is not subject to an expedited removal (or what is commonly known as “airport to airport”). He has the right to a hearing before a judge to contest the findings of the Department of Homeland Security. If there are valid reasons to show that there was no intent to abandon, then the individual will not be removed and will be allowed to retain his green card.

Contesting abandonment

When a green card holder stays outside the US for more than one year, he or she may contest charge of abandonment through the consular office of the US Embassy in Manila or before the Immigration Court upon entry to the United States.

To avoid prolonged interviews or extensive questioning at the port of entry, contesting abandonment before entry at the US Embassy may be

advisable. This means applying for and getting approval for an SB-1 visa or a returning resident visa. There is a nonrefundable fee of $380.

Returning residents must show the consular officer that when they departed from the US, they had every intention of returning and did  not abandoned their US residency. In addition, they should be able to show that their trip outside the US was temporary; that their protracted stay was caused by reasons beyond their control.

A home in the US

The Department of State’s guidelines on what constitutes proof of abandonment include failure to pay taxes and strong ties in the Philippines. If the green card holder has family members, properties and businesses located outside the US there were frequent absences from the United States, there is greater likelihood that permanent residence status would be considered abandoned.

It is important therefore that the application for a returning resident visa must be supported by sufficient evidence in order to establish a clear intention to maintain one’s US residency despite the lengthy absence. Proof of this intention may include a valid driver’s license from the State where he or she is a resident, a showing that the extended visit was caused by unforeseen circumstances, and payment of US income taxes, among others.

Studying abroad

Lengthy absences of green card holders who happen to be students getting their education outside the US, are likely to be excused. Temporary purpose is not necessarily determined by the length of time outside the US. As long as there is a projected time of return, the green card holder will not be charged with abandonment.

For students studying outside the US, proof that a degree will be obtained within a definitive time frame is important in obtaining the returning resident visa. Consular officers will consider the presence of the student’s family in the US and a showing that the green card holder-student returns to the US at the end of each academic term as a rebuttal of the presumption of abandonment.

Jeremiah’s case

Since Jeremiah traveled back to the US without a reentry permit or a returning resident visa, proof of nonabandonment of status must be established before the immigration court.

Jeremiah will be required to present the same evidence that a returning resident would be required to do before the consular officer at the US Embassy—only this time, he would have to do so before an immigration judge.

Remember that an immigrant’s residency status is not a right but simply a privilege. As such, it may be revoked if there is failure to appropriately contest the issue of abandonment.

(Tancinco may be reached at [email protected] or at 887 7177 or 721 1963)