Case Law on the Abandonment of Permanent Resident Status

 

Introduction: Administrative and Judicial Precedent on Abandonment of Permanent Residency

Abandonment of Permanent ResidencyIf a lawful permanent resident (LPR) is found to have abandoned his or her permanent residency, he or she will be subject to loss of status. An LPR who is charged with having abandoned his or her status will be subject to removal proceedings if he or she is present in the United States on account of having been allowed entry as an LPR. In this article, we will discuss relevant administrative and judicial precedent regarding the abandonment of LPR status. Before reading this article, please see our article about the concept of abandonment of LPR status and the Department of State (DOS) guidance found in the Foreign Affairs Manual (FAM) [see article].

To learn about the distinct concept of interruption of LPR status for naturalization purposes, please see our full article [see article].

Overview of Abandonment

Questions regarding the abandonment of LPR status usually arise when an LPR is abroad for at least one year continuously. Under 8 C.F.R. 211.1(a)(2), most LPRs will be ineligible to return to the United States with the presentation of a Form I-551 after being abroad for at least one year, and will have to apply for an SB-1 visa to enter as a returning resident [see article]. However, as we will discuss in the article, an alien can be found to have abandoned his or her residency in the United States for an absence or absences shorter than one year if he or she failed to continuously maintain the intent to remain a permanent resident of the United States.

The issue may also arise when an alien returns from an absence of six months or more. Under section 101(a)(13)(ii), an LPR who has been absent for a continuous period of more than 180 days will be treated as an applicant for admission. Under section 101(a)(13)(i), an LPR may also be treated as an applicant for admission if he or she has abandoned or relinquished his or her LPR status. To learn more about when an LPR may be treated as an applicant for admission, please see our full article [see article].

If a LPR in the United States is charged with having abandoned his or her LPR status, the alien will be charged with inadmissibility under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA) for being present in the United States without a valid entry document. If it is found that the alien abandoned his or her LPR status, the alien will be subject to removal from the United States.

To learn about how abandonment is a distinct concept from interruption of LPR status for naturalization purposes, please see our discussion of the issue [see section].

Concept of Abandonment

In the Matter of B—, 9 I&N Dec. 211 (BIA 1961) [PDF version], the Board held that a “temporary visit” abroad requires that the alien intend to “return within a period relatively short, fixed by some early event.” The Board further held that “[a] mere absence of the intention to remain abroad permanently will not preserve the alien's [LPR] status.”

In the Matter of Guiot, 14 I&N Dec. 393 (D.D. 1973) [PDF version], the Board may consider an alien's “intent” in determining whether he or she abandoned permanent residency. In Guiot, the Board held that an alien who had been abroad for two years had not abandoned his permanent residency because he maintained the intent to return to the United States while abroad. The Board held specifically that section 101(a)(20) of the INA allows for the consideration of factors such as whether the alien acted contrary to maintaining his or her LPR status (e.g., if an alien claims nonresident alien status for Federal income tax purposes, that may be weighed in considering whether he or she abandoned LPR status).

Factors to Consider

In the Matter of Kane, 15 I&N Dec. 258 (BIA 1975) [PDF version], the Board explained that it may assess the subjective intent of an LPR in determining whether he or she merely made a “temporary visit abroad” or whether he or she abandoned LPR status. Citing to Gamero v. INS, 367 F.2d 123, 126 (9th Cir. 1966) [PDF version], the Board explained that it cannot look merely at the amount of time an LPR was abroad in determining whether his or her status was abandoned. The Board listed three factors in Kane that should be considered in determining the subjective intent of an alien:

1. Purpose for Departing: The alien should have a “definite reason” for making a trip abroad.

The Board cited to the Matter of Guiot, 14 I&N Dec. 393 (D.D. 1973), wherein it had held that a trip abroad to accept a two-year position with a foreign university did not lead to the abandonment of LPR status. In the Matter of Souqi, 14 I&N Dec. 390 (RC 1973) [PDF version], it was held that a prolonged trip abroad to liquidate assets and bring family to the United States does not constitute abandonment of LPR status. In U.S. ex rel. Polymeris v. Trudell, 49 F.2d 730 (2d Cir. 1931) [PDF version], the Second Circuit held that a trip abroad to settle an estate is a permissible reason for making a trip abroad for purpose of retaining LPR status.

2. Termination Date: The termination of the trip abroad should be expected to terminate “within a period relatively short, fixed by some early event.”

In U.S. ex rel. Polymeris v. Trudell, 49 F.2d 730 (2d Cir. 1931), the Second Circuit held that the temporariness of a visit “cannot be defined in terms of elapsed time alone.” This concept was developed further by the Ninth Circuit in one of the most cited decisions on abandonment, Chairez-Ramirez v. INS, 792 F.2d 932 (9th Cir. 1986) [PDF version]. The Ninth Circuit held that a visit is only a temporary visit abroad when there is a reasonable possibility at the outset of the trip that it will terminate within a short period of time and when the alien “has a continuous, uninterrupted intention to return to the United States during the entirety of his [or her] visit.” So long as the alien maintains a continuous, uninterrupted intention to return to the United States throughout the entirety of his or her visit, the alien may be able to demonstrate that residence was not abandoned even if the visit is protracted.

3. Place of Employment or Actual Home: The alien must intend to return to the United States as a place of employment or business and as an actual home.

Citing to the Matter of Quijencio, 15 I&N Dec. 95 (BIA 1974) [PDF version], the Board explained that factors such as the location of the alien's ties (e.g., family, job, or property) “may aid in determining the alien's intent.”

The USCIS has taken the position that filing a tax return as a nonresident alien rather than as an LPR “raises a rebuttable presumption that the alien has abandoned LPR status.”1

In the Matter of Muller, 16 I&N Dec. 637 (BIA 1978) [PDF version], the Board held that the factors that adjudicators should consider in determining whether LPR status was abandoned include the (but are not limited to):

  • Duration of the alien's absence from the United States;
  • Location of the alien's family ties;
  • Alien's property holdings;
  • Alien's job; and
  • Intention of the alien with respect to the location of his or her actual home and the anticipated length of the trip abroad.

It is important to note that while it is necessary for an alien to have the intent to return to the United States when he or she departs and to maintain such intention throughout the duration of the trip abroad, this is not sufficient for showing that LPR status has not been abandoned. In the Matter of Huang, 19 I&N Dec. 749 (BIA 1988) [PDF version], the Board explained that “[a]n alien's desire to retain [his or] her status, without more, is not sufficient.” Rather, adjudicators must consider the factors set forth in Kane to determine whether an alien not only had and maintained the intention of retaining his or her LPR status, but whether his or her actions did not constitute the abandonment of such status. In Ahmed v. Ashcroft, 286 F.3d 611 (2d Cir. 2002) [PDF version], the Second Circuit held that merely finding that an alien had never consciously formed an intention to abandon LPR status did not preclude a finding of abandonment where the alien had remained outside the United States for nine years and lacked the intent to return within a period relatively short, fixed by some event.

In the Matter of Huang, 19 I&N Dec. 749 (BIA 1988), the Board held that the term “relinquished permanent residence” “can have reference to something less than a permanent dwelling place in the United States.” The Board further explained that the emphasis is on whether an applicant abandoned “[LPR] status in this country” rather than whether he or she “abandoned a particular dwelling place.” In Saxbe v. Bustos, 419 U.S. 65 (1974) [PDF version], the Supreme Court held that an LPR who maintains a home in Canada or Mexico and commutes daily to his or her place of work in the United States does not lose LPR status solely on account of maintaining a residence abroad. For further discussion of LPRs who live in Canada and Mexico and commute to work in the United States, please see our full article [see article].

In Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003) [PDF version], the Fifth Circuit held that administrative determinations of an alien's subjective intent to remain a resident of the United States are subject to judicial review because such a determination is “essentially factual.”

In Ahmed v. Ashcroft, 286 F.3d 611 (2d Cir. 2002), the Second Circuit held that, upon finding an alien had abandoned his LPR status at a specific point, his or her conduct subsequent to the point at which abandonment occurred cannot be considered in determining whether LPR status was in fact abandoned.

Precedent on Various Situations

Absences of Less than One Year

An alien may be found to have abandoned LPR status even if he or she has no single absence from the United States of one year or more. In Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997), the alien in question was found to have abandoned his LPR status after visiting the United States only during the summer while spending most of the year living and working abroad in Great Britain in anticipation of his wife and daughter obtaining LPR status based on his petitions for them.

Distinguishing Case where LPR Lived and Worked Abroad With Family

The Sixth Circuit distinguished Singh in Hana v. Gonzalez, 400 F.3d 472 (6th Cir. 2005) [PDF version]. In Hana, the LPR in question was a citizen and national of Iraq who primarily lived and worked in Iraq for purpose of ensuring the safety of her family members for whom she had filed petitions for to gain LPR status in the United States. The Sixth Circuit explained that, in distinguishing from Singh, “the alien's intent cannot be examined in a vacuum that turns a blind eye to the circumstances he [or she] faces.” The Sixth Circuit noted that while the respondent in Singh chose to spend the bulk of his time with his family in Great Britain in what was “arguably motivated by convenience,” the respondent's decision in Hana “was clearly motivated by the safety and welfare of her family.”

However, the Sixth Circuit has explained that each such situation is fact specific. In Karimijaki v. Holder, 579 F.3d 710 (6th Cir. 2009) [PDF version], the Sixth Circuit held that a respondent who had returned to Iran for 7 years and argued that it was because her 21-year old daughter could not live alone due to being unmarried had abandoned her LPR status.

Children of LPRs

Under the Matter of Zamora, 17 I&N Dec. 395 (BIA 1980) [PDF version], if an LPR parent is found to have abandoned his or her status while abroad with his or her LPR child (defined as being under the age of 18), the abandonment of LPR status shall apply to the child. Also see the Matter of Winkens, 15 I&N Dec. 451 (BIA 1975) [PDF version], wherein a 14-year old child was found to have lost his LPR status when he left the United States in the custody of his parents who abandoned their residence in the United States. More broadly, the Board held that the abandonment of an LPR parent's status is imputed to LPR minor children under his or her custody and control. In the Matter of Huang, 19 I&N Dec. 749, the Board held that “the excludability of the [LPR] children is dependent on the excludability of the [LPR parent].”

In Khoshfham v. Holder, 655 F.3d 1147 (9th Cir. 2011) [PDF version], the Ninth Circuit held that in order for an LPR's abandonment to apply to his or her LPR child, it must be found that the abandonment occurred before the child turned 18. If the child is still an LPR when he or she turns 18, his or her intent will control rather than the intent of his or her parent(s).

Loss of Citizenship

In the Matter of Vielma-Ortiz, 11 I&N Dec. 414 (BIA 1965) [PDF version], the Board held that the loss of U.S. citizenship for a naturalized citizen does not automatically result in the loss of LPR status.

Departure to Avoid Military Service

In the Matter of Muller, 16 I&N Dec. 637 (BIA 1978), the Board held that if an alien departs for purpose of evading military service or training (causing inadmissibility under the current section 212(a)(8)(B) of the INA) in times of war or a period declared by the President to be a national emergency, he or she is considered to have abandoned his or her LPR status.

Return With Visitor Visa

The DOS takes the position in 9 FAM 502.7-2(b)(6) that returning on a visitor's visa in lieu of a returning resident visa does not necessarily indicate abandonment.

Surrender of Green Card

In a non-precedent decision titled the Matter of Wood, No. A24-653-925 (BIA, Jan. 13, 1992), the Board took the position that the surrender of a Form I-551 after signing a Form I-407, Abandonment of Lawful Permanent Resident Status, does not necessarily result in the automatic loss of LPR status.2 An LPR who surrenders his Form I-551 under such circumstances may still be able to demonstrate that he or she did not intend to abandon LPR status. However, it is never advisable to sign a Form I-407 to abandon a Form I-551 for an applicant who believes that he or she has not abandoned LPR status, and who does not have the intent to abandon LPR status, without first consulting with an experienced immigration attorney for a full evaluation of the situation. More often than not, signing the Form I-407 will signify the alien's intent to abandon his or her LPR status.

Judicial Finding of Abandonment Without Immigration Proceedings

In U.S. v. Yakou, 428 F.3d 241 (D.C. Cir. 2005) [PDF version], the D.C. Circuit held that in a criminal prosecution, it could find that an alien had abandoned his LPR status despite the fact that he had never been charged in immigration proceedings. Following BIA precedent, the D.C. Circuit held that abandonment occurs at the time the alien “engages in an abandoning act.” To this effect, the D.C. Circuit cited to the Matter of Montero, 14 I&N Dec. 399 (BIA 1973) [PDF version], wherein the Board held that an LPR lost her status “at the point 'she departed … with no fixed intent to return' to the United States.” The D.C. Circuit also cited to the Matter of Abdoulin, 17 I&N Dec. 458 (BIA 1980) [PDF version] [see article], where the Board held that in the context of conferring benefits to a spouse as an LPR, a petition could be denied if the evidence indicates that the LPR petitioner had abandoned his or her LPR status (“it [is] not necessary to overlook this fact until status has been independently adjudicated”).3

Burden of Proof

In Ward v. Holder, 733 F.3d 601 (6th Cir. 2013) [PDF version], the Sixth Circuit held that the government must establish by “clear, unequivocal, and convincing evidence” that an alien had abandoned his or her LPR status when such an alien has a colorable claim to LPR status. This burden of proof derives from the Supreme Court decision in Woodby v. INS, 385 U.S. 276 (1966) [PDF version], which set the standard for establishing deportability for LPRs. This standard was also used by the Ninth Circuit in Khoshfahm v. Holder, 655 F.3d 1147 (9th Cir. 2011). The Second Circuit held that the statutes governing removal proceedings and the Board's decision in the Matter of Huang, 19 I&N Dec. 749, do not negate the fact that the government must sustain its burden by “clear, convincing, and unequivocal evidence.”

In Hana v. Gonzales, 400 F.3d 472 (6th Cir. 2005), the Sixth Circuit held that adjudicators must evaluate the “totality of the circumstances” in determining whether LPR status was abandoned.

Conclusion: Abandonment of Permanent Residency

LPRs should be aware of the necessity of having a continuous intention to maintain residency in the United States when traveling abroad. An LPR who is traveling abroad for an extended period of time or who must travel abroad on a consistent basis should consult with an experienced immigration attorney for a consultation on how the travels may affect his or her status, and for guidance on compiling evidence to demonstrate that he or she did not abandon LPR status. This is especially important if the alien believes that the departure may be in excess of one year. An experienced immigration attorney will also be able to determine in the naturalization process whether any of an alien's absences call into question whether LPR status was abandoned. If an LPR is asked to sign a Form I-407 relinquishing his or her Form I-551 due to suspicions of abandonment, he or she should consult with an experienced immigration attorney to determine whether he or she may have a case that LPR status was not abandoned.

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  1. 73 No. 27 Interpreter Releases 929 (Jul. 15, 1996)
  2. See 69 No. 16 Interpreter Releases 512 (Apr. 27, 1992)
  3. In Topsnik v. C.I.R., 143 T.C. 240 (T.C. 2014) [PDF version], the United States Tax Court held that “LPR status for Federal income tax purposes turns on Federal income tax law and is only indirectly determined by immigration law.” Accordingly, the Tax Court held that the tax laws “do not circumscribe the means by which an LPR may abandon that status for Federal income tax purposes” without the status having been revolved or administratively or judicially determined to be abandoned. In effect, Topsink means that an LPR in proceedings in tax court cannot rely upon Yakou to argue that he or she is not an LPR.

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1172-74, Print. Treatises & Primers.