Tag Archive for: Reentry Permit

What Happens to a Lawful Permanent Resident Who Has Been Stranded For Over One Year Abroad and the Green Card Validity Has Expired?  

By Cyrus D. Mehta and Kaitlyn Box*

COVID-related restrictions have caused difficulties for many noncitizens traveling abroad during the pandemic, but lawful permanent residents (LPRs) who traveled overseas in recent months face a unique set of issues. Many LPRs who traveled overseas in the early days of the COVID-19 pandemic quickly became trapped there for the foreseeable future, either by travel restrictions that prohibited them from reentering the United States or because they or a family member contracted COVID-19. Recent news articles have discussed the plight of these LPRs who have not been able to return to the US within 180 days to the US from their last departure from the US

Our blog FAQ for Green Card Holders During the Covid-19 Period generated tremendous interest. This blog is addressed towards LPRs who have been overseas for more than one year and the ten year validity period on their green cards have expired.

As a background, an LPRs who have been absent from the United States for less than 180 days are not considered to be applicants for admission.  An LPR who returns to the United States after more than six months abroad will again be considered an applicant seeking admission under INA 101(a)(13)(C)(ii) and may face additional scrutiny, but is unlikely to be accused of abandonment, especially if the reason for not travelling back within 180 days was due to COVID-19 restrictions. Regardless of whether the LPR is returning within or in excess of 180 days, there may be other grounds under which the LPR will be treated as an applicant for admission pursuant to INA 101(a)(13)(C).

Essentially, an LPR can be found to have abandoned that status regardless of the time spent abroad. The trip could have been under 180 or over 180 days. The key issue is to determine whether it was a temporary visit abroad. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) of what constitutes a temporary visit abroad is generally followed:

A trip is a temporary visit abroad if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

The Second Circuit in Ahmed v .Ashcroft, 286 F.3d 611(2d Cir. 2002) with respect to the second prong, has further clarified that when the visit “relies upon an event with a reasonable possibility of occurring within a short period to time…the intention of the visitor must still be to return within a period relatively short, fixed by some early event.” The Sixth Circuit in Hana v. Gonzales, 414 F.3d 746 (7th Cir. 2005) held that LPR status was not abandoned where an LPR was compelled to return to Iraq to resume her job and be with her family while they were waiting for immigrant visas to materialize.

After LPRs have spent more than a year outside the United States, their green card document (Form I-551) is technically no longer valid. There is a common misperception that this situation results in an automatic loss of permanent resident status, but an individual is still an LPR until they are found to have abandoned their permanent residence in the United States. Therefore, the test set forth in Singh v. Reno and other cases still needs to be followed to determine whether the LPR’s visit abroad was temporary or not.  The burden is still on the government to prove through clear and convincing evidence that the LPR has abandoned permanent resident status. See, e.g Matadin v. Mukasey, 546 F.3d 85 (2d Cir. 2008) and  Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

LPRs who have been abroad for more than a year may be able to apply for a apply for a Returning Resident (SB-1) Visa at a U.S. Consulate. In order to apply for an SB-1 visa, LPRs will still be required to demonstrate that they have not abandoned residence in the United States, and should explain that they were trapped outside the country due to the pandemic. However, U.S. consulates have been hesitant to issue SB-1 visas, even before the pandemic. It appears that since the pandemic, US consulates have not been entertaining SB-1. LPRs who wish to try for an SB-1 visa should check the website of the relevant U.S. embassy or consulate for guidance. The U.S. Embassy and Consulates in India website, for example, provides some instruction on how to apply for an SB-1 visa.  Alternatively, an LPR whose green card date is still valid could attempt to return to the U.S. anyway and assert at the port of entry that she has not abandoned permanent residence in the United States. Under INA § 211(b), CBP has the statutory authority to provide a waiver to a returning LPR who no longer has a valid green card document. It may be helpful for an LPR who is returning to the U.S. after more than a year abroad to have in hand documentary evidence that they have not abandoned permanent resident status. Documents such as: U.S. income tax returns, evidence of owning or leasing a residence in the U.S., bank statements or other proof of assets in the U.S., a letter or pay stubs from a U.S. employer, evidence of family ties in the U.S., proof of past medical treatments or doctor visits in the U.S., or evidence of membership in religious, professional, or community organizations in the U.S., to provide a few examples, can help stave off any allegation of abandonment of permanent resident status at the port of entry.

If the 10-year expiration date on the green card document has passed, the situation becomes more complicated. However, LPRs whose green card has expired or is about to expire may be able to file Form I-90 to renew their green card. The paper version of Form I-90 contains does not prohibit applicants who are outside the United States from submitting the form, so LPRs may be able to try renewing their green card even if they are stranded in India. USCIS announced in January 2021 that an I-90 receipt notice can be used in conjunction with an expired green card as proof of lawful permanent resident status, so filing an I-90 and obtaining a receipt notice may provide LPRs with a basis to reenter the United States.

Several things can happen when an LPR whose green card document has passed attempts to reenter the United States. For one, the LPR can complete Form I-193, and may be waived into the United States by CBP pursuant to INA § 211(b), if it is determined that they have not abandoned LPR status. Otherwise, the LPR will be placed into removal proceedings pursuant to INA § 212(a)(7)(A) as an arriving alien. LPRs who are placed into removal proceedings will need to make the case again that they have not abandoned permanent resident status, this time before an immigration judge. The burden of proof in this case is still on the government, and the LPR remains an LPR until a final removal order is issued. Final removal orders may be appealed to the BIA, and then to a circuit court.

An LPR who has an immediate relative who is a U.S. citizen, such as a spouse or a child over the age of 21, may be able to apply for adjustment of status all over again as adjustment can generally serve as a form of relief from removal. See Matter of Rainford, 20 I.&N. Dec. 598 (BIA 1992).  Note, however, that while there is no statutory bar on LPR re-adjustments, the USCIS may refuse to process such adjustments as a discretionary matter. LPRs who wish to take the lowest risk path can  be sponsored again while they are overseas if they have a basis for permanent resident status, such as a family member who can file an I-130 petition, particularly a U.S. citizen or LPR spouse or a U.S. citizen child over the age of 21.  Alternatively, one could be sponsored again through an employment-based category such as a multinational executive or manager under the employment-based first preference. Prior to processing for an immigrant visa, they must file Form I-407 to abandon their green card.

It is of course advisable that an LPR do everything to avoid being in the situation of remaining outside the US for more than one year and after the green card validity has expired. The LPR should apply for a reentry permit that would allow them to remain outside for the US for two years, although Form I-131 must be filed while the LPR is in the US. If the LPR has not filed for the reentry permit while in the US, then the next best approach is to try to reenter the US within 1 year from the last departure. If the LPR has remained outside the US for more than one year, LPR status has not been automatically lost and this blog provides a roadmap to still assert LPR status, although one trying this strategy should also be aware of the risks and pitfalls.

(This blog is for information purposes, and should not be relied upon as a substitute for legal advice).

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

 

 

FAQ for Green Card Holders during the COVID-19 Period

I have received inquiries from lawful permanent residents, or green card holders, who are outside the United States and have been unable to return to the United States in the COVID-19 period. They are unable to return either because there are no flights out of the country to the US or they feel vulnerable to contracting the infection or they may have unfortunately contracted the infection.

These green card holders are understandably concerned as their inability to return to the US is due to no fault of their own.  If a lawful permanent resident is unable to return to the US within a year, the green card technically becomes invalid for reentry to the US. This does not mean that the person ceases to be a lawful permanent resident, and it can still be asserted that lawful permanent residence has not been abandoned.

Similarly, a reentry permit allows a green card holder to remain outside the US for two years. One who is outside the US with a reentry permit must return back prior to the expiration of the reentry permit. Otherwise, if the person remains outside the US beyond the date of the reentry permit, the reentry permit is technically invalid as a travel document, although the person can still claim to be a lawful permanent resident.

Green card holders stuck outside the US have to also be mindful about their eligibility for naturalization. The eligible applicant must have at least 2.5 years of physical presence in the US in the past 5 years prior to filing the application. If the applicant has been married to a US citizen for 3 years, then the eligible applicant must have 1.5 years of physical presence in the US.  Spouses and children who obtained lawful permanent residence as a result of being subject to extreme cruelty by a US citizen are also allowed to apply for naturalization after 3 years. Furthermore, the applicant must be continuously residing in the US during the relevant 5 or 3 year period. An applicant who has been outside the US for more than six months is deemed to have broken continuity of residence. This presumption of breaking continuous residence can be rebutted if the applicant can show that the applicant did not terminate his or her employment in the United States or obtain employment while abroad; the applicant’s immediate family members remained in the United States; and the applicant retained full access to or continued to own or lease a home in the United States.

Below are my brief answers to Frequently Asked Questions (FAQ) by concerned green card holders during the COVID-19 crisis.

1.I am unable to return to the US as all flights have been cancelled in my country. Will I have any problems if I return to the US in excess of 180 days from my last departure?

If a green card holder seeks admission to the US after being outside for more than 180 days, he or she will again be considered as an applicant seeking admission into the US under INA 101(a)(13)(C)(ii). While you may be subject to more scrutiny at the port of entry as an applicant seeking admission, you will likely not be denied admission for abandoning permanent residency especially if the reason for not travelling back within 180 days was due to COVID-19 restrictions. Regardless of whether you are returning within or in excess of 180 days, there may be other grounds under which you will be treated as an applicant for admission pursuant to INA 101(a)(13)(C).

2. I am unable to return to the US as all flights have been cancelled in my country. Will I have any problems if I return to the US in excess of 1 year from my last departure?

The green card (Form I-551) is technically invalid for reentry into the US if you have spent in excess of 1 year outside the US from your last departure. If your reason for not coming back was related to COVID-19, you should apply for a Returning Resident (SB-1) Visa at the US Consulate as soon as it reopens to the public and explain that your inability to return was due to circumstances beyond your control. You must still demonstrate that you never abandoned permanent residence by demonstrating that you are returning from a temporary visit abroad, continued to  maintain ties with the US and that you always harbored an intention to resume permanent residency.

The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) of what constitutes a temporary visit abroad is generally followed:

A trip is a temporary visit abroad if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

3. What if the US Consulate refused the SB-1 Visa, or has not resumed operations soon enough, and I have spent in excess of 1 year overseas from my last departure?

If your green card (Form I-551) has not expired, you may wish to travel directly to the US and assert at the port of entry that you never abandoned permanent residency. While this is more risky than applying for an SB-1 visa, the Customs and Border Protection official has discretion to waive you into the US even without a technically valid I-551. The CBP official may ask you to complete Form I-193, Application for Waiver of Passport and/or Visa and pay the requisite filing fee. In the event that the CBP official does not waive you into the US, as a lawful permanent resident you have the right to have an Immigration Judge review your claim, and the burden of proof is on the government through clear and convincing evidence that you abandondoned permanent residency.

4. As a result of being unable to travel back to the US, I have gone beyond the expiration date of my reentry permit?

My responses to Questions 2 and 3 are equally applicable to one who has stayed beyond the expiration date of the reentry permit.

5. Can I attempt to renew the reentry permit while stuck overseas?

No. You can only apply for a reentry permit while you are physically in the US.

6. How will my being stuck outside the US in excess of 180 days but less than 1 year impact my ability to naturalize?

You have to demonstrate that you have been physically present in the US for half of the relevant period – 5 years or 3 years (if married to a US citizen for 3 years) – preceding the filing of the N-400 application. In other words, you must demonstrate that you have physically spent at least half of 5 or 3 years in the US. Each day you spend outside the US may erase the time you have already accumulated until you get readmitted into the US and gain more days. Of course, if you have already accumulated days that exceed the threshold, you would still have sufficient time to spare.

If you are on the cusp, and will likely have less than half of the required time of physical presence in the US because of your forced stay outside the US, then you may wish to consider filing the N-400 application from overseas in order to lock in the required physical presence.

If you meet the physical presence test, you have to also demonstrate that you did not break continuity of residence, and so remaining outside the US in excess of six months will lead to a rebuttable presumption that you broke continuous residence. Under current law, one can rebut the presumption by demonstrating that you did not move your residence or seek employment overseas, or your immediate family members remained in the US. There is no accommodation in the existing rules regarding remaining outside the US due to circumstances beyond your control. Still, an applicant is nevertheless encouraged to use a COVID-19 related ground to also rebut the presumption of breaking continuity of residence.

7. How will my being stuck outside the US in excess of 1 year impact my ability to naturalize?

Unfortunately, whatever physical presence that was accumulated will be erased, and you will need to wait 4 years and 1 day before you can file Form N-400 again, provided you have the requisite physical presence as discussed above, and you have also been continuously residing during the relevant period. The USCIS Policy Manual suggests that an applicant apply after 4 years and 6 months to avoid the presumption of a break in continuity of residence.

8. Are there any exceptions if I am unable to meet the requirements of naturalization if I am stranded overseas?

Yes. Spouses of US citizens who are employed abroad for certain organizations may not need to meet the physical presence of residence requirement. Most people who avail of this exception are spouses of US citizens working for an American corporation or its subsidiary abroad that is engaged in the development of foreign trade or commerce of the US,  but see Chapter 4 – Spouses of US Citizens Employed Abroad of the USCIS Policy Manual for further details and other exceptions.

(This blog is for informational purposes, and should not be viewed as a substitute for legal advice)

 

 

 

 

 

 

 

 

 

 

 

The Ties that Bind: Can Family Unity Co-Exist with Maintenance of Lawful Permanent Resident Status?

By Gary Endelman and Cyrus D. Mehta

While many covet lawful permanent resident (LPR) status in the US, popularly known as the green card, since it allows them to freely live and work in the US, it can also become a burden if one remains absent from the US, which can result in the loss of this status. This happened in Lateef v. Holder, where the petitioner, a Pakistani national, argued that despite multiple long absences from the United States, she did not intend to abandon her status, which also served as the foundation for her husband’s and child’s entry into the United States. The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan, including her final trip that lasted a year and three months, supported the BIA’s finding that she had abandoned her LPR status. The court also noted that the petitioner, at the end of a long and exhausting international flight, fearful of losing her LPR status, had lied in one instance to border officials about the date of her last visit to the United States.

Circuit Judge Jane B. Stranch dissented, noting among other things that errors by U.S. immigration officials were responsible for at least some of the delays in her returning, and that the petitioner’s daughter in Pakistan had emotional and physical problems that compelled her to spend time in Pakistan to care for her.

The main lesson learned from Lateef v. Holder is that waiting outside the US with your loved ones, until they can immigrate to the US, can result in abandonment of your green card. Due to the tremendous backlogs in the family-based immigration system, it can take years before an LPR can sponsor a spouse or child to the US, thus compelling the LPR to be absent from the US until such time that the family members are issued immigrant visas. The case highlights the tensions between a global world involving frequent travel, and where families live apart in different countries, and an insular immigration system.

Lateef, a native of Pakistan, became a LPR in 1991 along with her parents and brothers. She initially went back to Pakistan to complete her final 2 years of medical school, and then returned to the US and remained for over 2 years. After Lateef married her husband in Pakistan in June 1995, she spent most of her time in Pakistan until February 2001, when she was charged with inadmissibility based on abandonment of her LPR status. Between 1995 and 2001, she returned periodically to the US to take her medical exams. Her husband was also denied a visitor visa during this time. She also gave birth to a daughter in Pakistan. Although, according to the majority her daughter was granted LPR status “as a child born during a temporary visit abroad” to an LPR under 8 C.F.R. § 211.1(b)(1), Judge Stranch’s dissenting opinion disputes this fact. Due to an error by the INS at the port of entry, according to Judge Stranch, the daughter was not granted LPR status under this special dispensation. Lateef had to file a separate I-130 petition on behalf of her daughter, which resulted in the daughter having to wait in Pakistan for many years. Lateef’s daughter developed behavioral problems whenever she came to the US to take medical exams. She was thus forced to return to Pakistan, and she last left the US in November 1999 due to her daughter’s continuing behavioral problems, where she remained there for a year and three months. Her husband and children (by then she also had a son) were granted immigrant visas in November 2000, but she stayed in Pakistan until 2001 to attend weddings.

When Lateef last arrived in the US in February 2001 after being out since November 1999, she falsely told the officer that she was last in the US in July 2000. Upon being confronted, she changed her story that she was last in the US in April 2000, which was also untrue. When being further confronted with documents found in the family’s luggage, she confessed that she was out since November 1999 and that she had previously lied to immigration officials.

Before we draw further lessons from Lateef v. Holder, we give you a primer on the law of abandonment of LPR status. For a more extensive review on this subject, we refer you to our article, Home Is Where The Card Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849, July 1, 2008. Essentially, an LPR must be returning from a temporary visit abroad under INA § 101(a)(27) in order to avoid a charge of abandonment. The term “temporary visit abroad” has recently been subject to interpretation by the Circuit Courts. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) is generally followed:

A trip is a ‘temporary visit abroad’ if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.”If as in (b) “the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

Singh v. Reno is worth further elaboration as the facts in this case are somewhat analogous to Lateef v. Holder. Singh obtained lawful permanent residence through the special agricultural worker program on December 1, 1990. From that date till the initiation of the proceedings on July 8, 1993, Singh spent less than one-third of his time in the US. In fact, he spent time with his wife and daughter in the United Kingdom who were waiting for their family-based immigrant visa petition to materialize. During the time Singh spend in the US, he worked sporadically for a restaurant in California, and lived in temporary housing provided by the employer. Singh also applied for a visitor visa at the US consulate in London and entered the US four times on that visa after he obtained permanent residency in the UK. The Ninth Circuit held that Singh’s long visits to the UK did not qualify as a temporary visit, even though he was never out of the US for more than a year, and upheld the Board’s decision affirming his abandonment of LPR.

In a scathing dissent, Judge Reinhardt criticized the majority for failing to consider that Singh’s motive for spending time abroad was due to the wait for his wife and daughter to gain immigration status. Moreover, the dissenting judge disagreed with the majority that the wife and spouse were free to reside in the US while waiting for their immigration status.

Another important case is Hana v. Gonzales, 400 F.3d 472 (6th Cir. 2005), which in turn drew from Singh v. Reno. Although the facts in Hana v. Gonzales, are similar to Singh, the Sixth Circuit found that Hana, an Iraqi national, did not abandon her status. On May 22, 1992, Hana was granted LPR status upon which she immediately filed immigrant visa petitions for her husband and four children. A few weeks later, on July 19, 1992, Hana returned to Iraq, and to her job as an inspector at the Central Bank of Iraq under the Saddam Hussein regime. Hana was compelled to return to Iraq to work because she was afraid that the government would hurt her family. Upon obtaining a reentry permit, Hana spent in the next two years in Iraq with her family and to care for her terminally ill mother in law. Two weeks prior to the expiration of her re-entry permit in December 1996, Hana returned to the US but was detained and charged with inadmissibility as an immigrant without a valid visa. Hana admitted that she had never paid income tax in the US and had no property in this country, but had initially entered with $10,000 in jewelry and money, which she gave to her brother so that she could ultimately purchase a home and car, and provide for her children when they arrived in the US.

While ruling in Hana’s favor, the Sixth Circuit emphasized that it must take into account the totality of the alien’s circumstances in addition to the two-part test established in Singh v. Reno to determine what constitutes a temporary visit abroad. Thus, while Hana did not possess family, property or job in the US, the Court held that she still had an intent to return to the US upon the materialization of her family members’ immigration visa petitions. It appears that the Sixth Circuit was influenced by Hana’s decision to remain in Iraq with her family to ensure that they were not harmed by a brutal regime’s henchmen and for caring for her terminally ill mother-in-law. The Sixth Circuit distinguished Singh v. Reno, by observing that Singh’s family, even though not free to reside in the US, could freely travel between the two countries which were relatively safe democratic nations, although the Court acknowledged that Singh was a “close case.” Clearly, Hana is a better decision as it recognizes an LPR’s need to remain with family overseas, and is also more understanding of the realities of the backlogs in family-based immigration, along with the difficulty that sponsored family members may have in obtaining visitor visas to the United States as well as the political and economic realities that might hinder one’s ability to return to the US quickly.

Lateef v. Holder is also from the Sixth Circuit, and Lateef sought to show that her case was similar to Hana, but the majority thought otherwise. Unlike the Hana petitioner, who was forced to remain in Iraq to protect her family from a brutal dictatorship, the Lateef court thought that Pakistan was a free country that allowed its people to travel. Also compare Hana’s intent to return to the US upon the immigration of her relatives, which the Sixth Circuit paid attention to despite her lack of other ties, with the refusal of the Sixth Circuit to pay similar deference to Lateef’s intent as a controlling factor. It appears that the Sixth Circuit thought that Lateef’s case was more like Singh who could freely travel between two democratic countries, the United Kingdom and the US, even though they had relatives who were waiting in the preference system for immigrant visas. While this is a refreshing observation on Pakistan, we know anecdotally that Pakistani nationals do not otherwise fare too well in our immigration system. Their applications for routine immigration benefits get scrutinized more than others through the prism of national security, and they are more amenable to be placed in removal proceedings notwithstanding the new DHS prosecutorial discretion policy set forth in the Morton Memo of June 17, 2011. It is true that Lateef did not have a reentry permit, unlike Hana, when she returned to the US in February 2011 and even lied about the last time she came back to the US. This may have cut against her, but the misrepresentation would not have been material, and thus an additional ground of inadmissibility, if she had not abandoned her LPR status. Also, a reentry permit is not an essential prerequisite for maintaining LPR status. In yet another decision involving a Pakistani national, Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003), the petitioner, after obtaining LPR status, left for Pakistan to marry and spent the majority of the next several years with her husband and children in Pakistan. Even though Moin had a sick child who died after barely one year and had a reentry permit, the fact that she spent most of the time in Pakistan without an intent to return within a relatively short period caused the Fifth Circuit to affirm the abandonment of her LPR status. The Fifth Circuit observed that “a reentry permit, in and of itself, does not prevent a finding that an alien has abandoned her permanent residency status.” Indeed, this lesson is one that is poorly understood by LPRs who see the re-entry permit as offering the absolute assurance of retention. The Lateef court, in finding that the petitioner had abandoned LPR status was more influenced by Moin and Singh than Hana.

Still Judge Stranch’s dissent in Lateef has considerable moral force like Judge Reinhardt’s dissent in Singh. Green card holders should not be deprived of their status primarily because they reside abroad with family members whom they have sponsored under our creaky immigration system. In Lateef, it appears that there was also an error with respect to her infant daughter being expeditiously granted LPR status at the airport under the special dispensation in 8 C.F.R. § 211.1(b)(1). Her daughter thus was forced to stay in Pakistan until the regular immigrant visa processing for a few years, and Lateef needed to be with her daughter in Pakistan due to continuing behavioral problems. Even though the court opined that Lateef and her family were free to travel, her husband was denied a tourist visa. This is often the case when a family member is being sponsored for a green card, and the tourist visa is routinely denied on the ground that the family member is wrongly suspected of being an intending immigrant and planning to overstay the visa. Moreover, the court seemed to be impressed by the fact that Hana brought $10,000 worth of valuables and cash with her to purchase a home and a car in the US when she finally would come and reside in the US. But the court glaringly missed the investment in time that Lateef was spending taking medical exams in the US that would qualify her to practice as a physician and establish a career in the US. It is clear that Lateef was expending her own human capital in the US even though she did not bring physical assets to the US like Hana, which appeared rather modest. On the other hand, Lateef’s investment of time in obtaining a medical license to practice in the US was impressive.

The unfortunate holding in Lateef v. Holder again compels us to offer our proposal that, if adopted, will change the law on preservation of LPR status in a really big way: green card holders, like US citizens, should not be presumed to abandon their status without a tangible manifestation or expression of informed consent. The significance of LPR status would be greatly enhanced if a presumption existed in favor of retention of status, notwithstanding the commission of certain acts that might suggest a contrary intent. US citizens now enjoy this same presumption and there is no reason why resident aliens should not as well. It is neither sound nor sensible to assume that naturalized Americans have a stronger or more meaningful attachment to this country than lawful permanent residents; indeed, there are numerous anecdotal reasons to commend the opposite conclusion. Extended absence from the US, without more, should never serve as the basis for abandonment; in a global economy, where an LPR may have to reside abroad with family members until their immigration process is completed or where international relocations are the price of career advancement or even job retention, the law should and must provide that no LPR can be stripped of their green card on the basis of abandonment unless he or she clearly states an unmistakable intention to give it up. No inference from proven conduct would be possible absent clear evidence that such was the desired and intended consequence. Application of this presumption would properly reflect the profound importance of lawful resident alien status while serving as symbolic recognition of the vast contributions that such permanent residents have made to their adopted home. How is the nation well served when we presume that a citizen does not intend the consequences of a potentially expatriating act while denying the LPR his or her right to rely upon the very same presumption? What reason is there to believe that a US citizen is more invested in keeping citizenship than an LPR in preserving the green card? Do we seek to punish the lawful permanent resident for retaining original loyalties and not taking that one, final, fateful step signifying that they have truly become one of us, making our cause their own?

So long as the green card holder has not violated our laws, or otherwise subjected themselves to justifiable removal, no public interest is advanced when the law refuses to shield permanent residents from involuntary loss of status. Our liberties are not made more secure, our federal coffers do not swell with more tax dollars, our enemies are not chastened nor our friends reassured from such an anomalous state of affairs. The genius of the American constitutional arrangement, that which has provided it with the equipoise so prized in times of crisis, lies in its ability to give all those affected by its operation a stake in society. As Professor Alexander M. Bickel taught us in Citizenship in the American Constitution, 15 Arizona Law Review 369 (1973), the value of citizenship is most authentically reaffirmed when the rights of citizens are least exalted above all others. No one, LPRs included, should have to choose between loyalty to family and retention of status. The true meaning of America lies elsewhere. F. Scott Fitzgerald in The Crack-Up (1933) points the way:

France was a land, England a people but America was somehow different… It had about it still the quality of an idea…It was, above all else, a willingness of the heart.