The Matter of Abdoulin: Evidence of Abandonment of LPR Status May Be Considered in IV Proceedings

 

Introduction: The Matter of Abdoulin

Matter of AbdoulinIn the Matter of Abdoulin, 17 I&N Dec. 458 (BIA 1980) [PDF version], the Board of Immigration Appeals (BIA) held that that adjudicators need not ignore evidence that a lawful permanent resident (LPR) who sponsored a relative for an immigrant visa in the second preference category had abandoned his or her permanent residency. In effect, the Matter of Abdoulin means that if an LPR cannot sustain his or her burden of demonstrating that he or she never abandoned LPR status, a family-sponsored petition filed by that LPR may be denied even if there was no formal finding of abandonment. In this article, we will discuss the BIA's precedent decision in the Matter of Abdoulin. To learn about the concept of abandonment of LPR status, please see our articles on the Department of State (DOS) guidance [see article] and administrative and judicial precedent [see article] on abandonment.

Facts and Procedural History of the Matter of Abdoulin

The petitioner in the Matter of Abdoulin had been admitted into the United States as an LPR in 1964. Subsequent to admission, the petitioner returned to Iran with his family. The petitioner remained abroad for a continuous period of about eleven years. The petitioner was readmitted to the United States in 1975 and 1976 as a nonimmigrant student. In 1977, the petitioner married a native and citizen of Iran in Iran. The petitioner sponsored his wife for an immigrant visa under section 203(a)(2) of the Immigration and Nationality Act (INA) on the basis that she was the wife of an LPR.

The District Director adjudicating the petition denied it on the basis that the petitioner's application for a waiver of a visa under section 211(b) of the INA had been denied. Section 211(b) gives the Attorney General discretion to allow for the readmission of an LPR under section 101(a)(27)(A) as a returning permanent resident without the normally required documentation (provided that the person is otherwise eligible for readmission as an LPR). The petitioner had been denied a waiver under section 211(b) because it had been found that he was not returning from a temporary visit abroad and was thus no longer an LPR. Accordingly, the District Director denied the immigrant visa petition filed by the petitioner because the petitioner had not established that he was an LPR under section 101(a)(20), and thus failed to establish his eligibility for conferring benefits to his spouse under section 203(a)(2). It is important to note that there was no formal finding that the petitioner had abandoned his LPR status.

Issues Presented in the Matter of Abdoulin

On appeal to the BIA, the petitioner relied upon the Board's precedent decision in the Matter of Umale, 16 I&N Dec. 682 (BIA 1979) [PDF version]. In the Matter of Umale, the Board held that the LPR status of a petitioner who was present in the United States could not be attacked in visa petition proceedings (but rather, formal charges must be brought in deportation (now removal) proceedings where the petitioner would have due process rights). In Umale, the LPR status of the petitioner was in question because the petitioner had gained LPR status as the unmarried daughter of a U.S. citizen, but there was evidence that she had been married at the time she was granted LPR status.

The Immigration and Nationality Service (now the Department of Homeland Security (DHS)) argued that the instant case was distinguishable from the Matter of Umale because in Umale, the petitioner was last admitted to the United States as an LPR, whereas in the Matter of Abdoulin, the petitioner had last been admitted as a nonimmigrant student.

In the instant case, the Board described the pertinent issue as follows:

The issue, then, is whether or not a visa petition can be denied on the ground that the petitioner has not established that he is entitled to permanent resident status, even though no adjudication of this status has occurred in deportation or exclusion proceedings.

Board's Analysis and Decision in the Matter of Abdoulin

First, the Board agreed with the government's position that the situation in the Matter of Abdoulin was distinguishable from that found in the Matter of Umale. Specifically, the Board noted that in Umale, the petitioner had been admitted as an LPR, whereas that was not the case in Abdoulin.

The Board discussed its precedent decision in the Matter of Abdelhadi, 15 I&N Dec. 383 (BIA 1975) [PDF version]. The situation in Abdelhadi was similar to that in Umale, where there were questions about whether the LPR petitioner had been eligible for LPR status at the time it was granted. However, in Abdelhadi, the petitioner was not present in the United States, meaning that it had no way of placing her in immigration proceedings to test whether she had abandoned her LPR status. In Abdelhadi, the Board held that the petitioner had not sustained her burden for demonstrating that she was eligible to confer LPR status, but remanded the record to give her the opportunity to rebut the claims that she was not an LPR.

The Board noted that it took the position in both Umale and Abdelhadi that the LPR status of an LPR petitioner is “a claim of such importance” that the LPR “could not be divested” of LPR status “without a full hearing.” Importantly, however, the Board explained that it had also held “where a question had arisen as to the status of the alien which affected his right to confer benefits under the immigration laws to other persons, it was not necessary to overlook this fact until the status had been independently adjudicated.” This distinction, that there is a difference between considering whether the petitioner him or herself is an LPR from considering whether the petitioner is eligible to confer benefits as an LPR in visa petition proceedings, is central to the Board's ultimate decision in the Matter of Abdoulin. To this effect, the Board cited to its decision in the Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966) [PDF version], where it held that in visa petition proceedings, the alien petitioner has the burden of demonstrating that he or she is eligible to confer benefits. This is distinguishable from the Board's decision in the Matter of Kane, 15 I&N Dec. 258 (BIA 1975) [PDF version], where the Board held that if the government claims an LPR abandoned his or her status, the government has the burden of showing abandonment.

The Board explained that there were significant differences between the petitioner's situation in the Matter of Abdoulin and the situations presented in the Umane and Abdelhadi. The government did not question the petitioner's qualifications for LPR status in the first place in Abdoulin. Rather, the government alleged that the petitioner was ineligible to confer LPR status based on his actions after being granted LPR status. The Board noted that the petitioner had been absent from the United States for “about [eleven] years.” Furthermore, after that eleven-year absence, the petitioner reentered the United States three times not as an LPR, but rather as a nonimmigrant student. Due to these facts in conjunction with “the lateness of his claim to [LPR] status,” the Board held that the petitioner's LPR status had “been placed in sufficient doubt as to justify the conclusion that he has not established his entitlement to confer [LPR status] under section 203(a)(2)” of the INA.

The Board was careful to note that its decision was based on the petitioner's actions subsequent to his admission as an LPR, and did not rely solely upon the petitioner having been denied a waiver under section 211(b) for having lacked documentation to be admitted as a returning resident (as it stated the District Director had seemed to). The Board made clear that the petitioner remained an LPR until his or her status was tested in immigration proceedings. However, the Board held that there had been “a proper adjudication of [the petitioner's] rights to confer benefits to another alien.” Because the Board held that the petitioner had not carried his burden of proof for demonstrating his eligibility to confer benefits as an LPR to another alien, the Board agreed with the District Director's decision to deny the petition and dismissed the petitioner's appeal.

Discussion of the Matter of Abdoulin

In the Matter of Patel, 19 I&N Dec. 774 (BIA 1988) [PDF version], the Board cited to the Matter of Abdoulin for its holding that when there is a question regarding the LPR status of an LPR petitioner, “that petitioner may be required to carry his [or her] burden of proving that he [or she] is entitled to confer benefits.”

The Matter of Abdoulin was discussed in two separate INS (now DHS) legal opinions. In 1990, the INS General Council took the position, citing to Abdoulin, that if there are questions regarding whether an LPR petitioner has abandoned his or her status, “it is not necessary to overlook these questions.”1 In 1997, the INS took the position, citing to Abdoulin, that if a person claiming to be an LPR lives abroad when he or she files an immigrant visa petition for a relative, the petition may be denied if the petitioner fails to establish that he or she did not abandon LPR status.2

In the Inspector's Field Manual (IFM 17.5(b)), the Customs and Border Protection (CBP) had instructed that the Matter of Abdoulin held that the denial of a section 211(b) waiver is not the same as a definitive finding of abandonment of permanent residence.

In U.S. v. Yakou, 428 F.3d 241 (D.C. Cir. 2005) [PDF version], the D.C. Circuit held that a person who had been admitted as an LPR could be found to have abandoned his or her LPR status without a formal finding of abandonment in removal proceedings. In its discussion, the D.C. Circuit stated that in the Matter of Abdoulin, the Board had “[implicitly recognized] that [the petitioner's] LPR status had already changed as a result of his ceasing to live in the United States.” However, it is important to note that the Board explicitly held in the Matter of Abdoulin that the petitioner could not lose his LPR status without it being tested in removal proceedings.

Conclusion: The Matter of Abdoulin

In the Matter of Abdoulin, the Board held that where there are questions of whether an LPR abandoned his or her status, an immigrant visa petition filed by that LPR may be denied if the petitioner cannot carry his or her burden for proving that he or she did not abandon LPR status. Combined with the Matter of Abdelhadi (covering an LPR petitioner who is abroad and not subject to immigration proceedings while outside of the United States), the Board precedent leaves open a variety of situations where questions about an LPR petitioner's entitlement to or maintenance of LPR status can lead to the denial of a petition. It is important to note that both cases distinguish the eligibility to confer LPR status from the petitioner's own LPR status. Nothing in the Matter of Abdoulin technically precludes an LPR petitioner who has his or her petition denied over abandonment questions from subsequently demonstrating that he or she did not abandon status in immigration proceedings. LPRs who seek to petition for relatives should consult with an experienced immigration attorney throughout the entire process. This is especially important for LPR petitioners for whom there may be questions regarding abandonment of LPR status.

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  1. Genco Op. No. 91-2 (INS), 1991 WL 1185113
  2. Legal Op. No. 97-10 (INS), 1997 WL 33169240