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

April 26, 2021/0 Comments/in uncategorized/by Cyrus Mehta

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.

The Inappropriateness of Finding Abandonment of Lawful Permanent Residency During Naturalization

November 29, 2020/0 Comments/in Blog/by Cyrus Mehta

On November 18, 2020, U.S. Citizenship and Immigration Services (USCIS) updated policy guidance to clarify the circumstances when the agency would find applicants ineligible for naturalization because they were not lawfully admitted for permanent residence. “Applicants are ineligible for naturalization if they obtained lawful permanent residence (LPR) status in error, by fraud or otherwise not in compliance with the law,” USCIS said.

The update also clarifies that USCIS reviews whether an applicant has abandoned LPR status when it adjudicates a naturalization application. If an applicant does not meet the burden of establishing maintenance of LPR status, USCIS said it generally denies the naturalization application and places the applicant in removal proceedings by issuing a Notice to Appear (NTA). The update also provides that USCIS generally denies a naturalization application “filed on or after the effective date if the applicant is in removal proceedings pursuant to a warrant of arrest.”

The updated policy guidance does not break new ground. USCIS has always rendered applicants ineligible for naturalization after it finds that they were not lawfully admitted for permanent residence. One example is if the applicant made a misrepresentation while applying for a tourist visa many years ago and failed to disclose this fact when filing the I-485 application for adjustment of status along with the submission of a waiver to overcome this ground of inadmissibility under INA 212(a)(6)(C)(1).

What is more troubling about this new guidance is that it incentivizes USCIS to find that lawful permanent residents may have abandoned that status previously even though Customs and Border Protection (CBP) may have admitted them into the United States. A naturalization applicant may have at some point in the past been outside the US for more than 180 days, and then admitted by CBP into the US. Even if the LPR remained outside the US for over a year, as a result of inability to return to the US due to Covid-19, the LPR may still be admitted into the US. The new guidance now encourages naturalization officers to investigate whether the applicant may have abandoned LPR status regardless of the length of prior trips abroad, even if the trips abroad were for less than 180 days. Indeed, the guidance encourages naturalization examiners to overrule a determination that CBP made at the time of the LPRs admission into the US. At that point in time, the government had a very heavy burden to establish that the LPR had abandoned permanent residence.

Under INA 101(a)(13)(C), LPRs shall not be regarded as seeking admission into the United States unless, inter alia, they have abandoned or relinquished that status or have been absent from the US for a continuous period in excess of 180 days.

It has historically been the case that when an applicant for admission has a colorable claim to lawful permanent resident status, the burden is on the government to show that they are not entitled to that status by clear, unequivocal and convincing evidence. This standard was established by the Supreme Court in Woodby v. INS, which held that the burden was on the government to prove by “clear, unequivocal, and convincing evidence” that the LPR should be deported from the United States. Subsequent to Woodby, in Landon v. Plasencia, the Supreme Court held that a returning resident be accorded due process in exclusion proceedings and that the Woodby standard be applied equally to a permanent resident in exclusion proceedings.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) introduced the notion of “admission” in INA §101(a)(13)(C). “Admission” replaced the pre-IIRIRA “entry” doctrine as enunciated in Rosenberg v. Fleuti, which held that a permanent resident was not considered making an entry into the US if his or her departure was “brief, innocent or casual.” Under §101(a)(13)(C), an LPR shall not be regarded as seeking admission “unless” he or she meets six specific criteria, which include the permanent abandoning or relinquishing of that status or having been absent for a continuous period in excess of 180 days. Fleuti has been partially restored in Vartelas v. Holder with respect to grounds of inadmissibility that got triggered prior to the enactment of IIRIRA. Moreover, the returning permanent resident who returns from a trip abroad that was more than 180 days would be treated as an applicant for admission under INA 101(a)(13)(C)(ii), and thus vulnerable to being considered inadmissible. INA 240(c)(2), also enacted by IIRIRA, requires an applicant for admission to demonstrate by “clear and convincing evidence” that he or she is “lawfully present in the US pursuant to a prior admission.” INA 240(c)(2) places the burden on an applicant for admission to prove “clearly and beyond doubt” that he or she is not inadmissible. On the other hand, with respect to non-citizens being placed in removal proceedings, INA 240(c)(3), also enacted by IIRIRA, keeps the burden on the government to establish deportability by “clear and convincing” evidence.

Notwithstanding the introduction of INA 101(a)(13)(C), as well as INA 240(c)(2) and INA 240(c)(3), the Woodby standard still prevails and nothing in 101(a)(13)(C) overrules it, and the burden of proof is still on the government through clear, convincing and unequivocal evidence that LPR has lost that status. See Matadin v. Mukasey. This was further established in 2011 by the Board of Immigration Appeals in Matter of Rivens, which held:

Given this historical practice and the absence of any evidence that Congress intended a different allocation of standard of proof to apply in removal cases arising under current section 101(a)(13)(C) of the Act, we hold that the respondent – whose lawful permanent resident status is uncontested – cannot be found removable under the section 212(a) grounds of inadmissibility unless the DHS first proves by clear and convincing evidence [footnote omitted] that he is to be regarded as an applicant for admission in this case by having “committed an offense identified in section 212(a)(2).

Although in Matter of Rivens, the BIA acknowledged that the language in INA 240(c)(3) indicated “clear and convincing” evidence rather than “clear, convincing and unequivocal” evidence as in Woodby, the BIA has not had occasion to determine that the deletion of one word “unequivocal” has effected a substantial change to the standard.

Additionally, in cases involving the abandonment of permanent residence, it is not the length of the absence that is determinative but whether it was a “temporary visit abroad” pursuant to INA 101(a)(27)(A). The term “temporary visit abroad” has been subject to interpretation by the Circuit Courts that requires a searching inquiry of the purpose of the trip, thus making it harder for the government to find that the LPR abandoned that status even if the trip abroad was for an extended period of time in addition to the high burden of proof that the government is required to meet under Woodby. The Ninth Circuit’s interpretation of “temporary visit abroad” in Singh v. Reno 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, 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 held that LPR status was not abandoned where 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.

Although the USCIS guidance to naturalization examiners cites these and other cases regarding abandonment of LPR status, this determination was already made by the CBP at the time of the applicant’s admission when the burden was on the government to establish through clear and convincing evidence that the LPR had abandoned that status. Since presumably the government did not meet this burden then, the LPR was admitted into the US. It is inappropriate to empower the USCIS through new policy guidance to once again meet this burden after the fact in a naturalization interview. It is one thing to investigate whether an applicant was ineligible for LPR status at the time of receiving it based on a ground of inadmissibility (e.g. fraud or misrepresentation) that was not overcome, but it is quite another to waste government resources to require USCIS to meet its heavy burden again regarding abandonment of LPR status during naturalization. If the USCIS wants to retain guidance regarding finding abandonment in a naturalization interview, it can be narrowed, which the Biden administration may wish to consider, in circumstances where naturalization may be denied when it is readily obvious that the applicant is no longer a permanent resident. This may apply to one who was once an LPR as the unsuccessful plaintiff in Biglar v. Attorney General, departed the US over a period of several years and then was subsequently admitted in B-2 visitor status, after which the applicant applies for naturalization. The Eleventh Circuit held that Biglar had abandoned his LPR status even though he sought to renew his green card after he was admitted into the US in B-2 status. Except for these unusual facts, the USCIS should not be investigating abandonment based on any and every absence especially when the CBP admitted the applicant as an LPR after being aware of the length of that absence from the US.

While the government will argue that the burden is on the applicant for naturalization to establish his or her eligibility, see Berenyi v. INS, the guidance also instructs the USCIS to initiate removal proceedings against LPRs who have been deemed to abandon their status. While in removal proceedings, applicants must insist that the government continue to meet its heavy burden through clear and convincing evidence to demonstrate that they abandoned LPR status, and this burden becomes doubly difficult when USICS is required to second guess a CBP officer’s determination regarding an LPRs admission several years later in a naturalization interview.

The new guidance has been introduced by the Trump administration to create a chilling effect on potential applicants on naturalization based on past travel abroad. The Biden administration should immediately revise the guidance on January 20 or shortly thereafter.

FAQ for Green Card Holders during the COVID-19 Period

April 13, 2020/0 Comments/in Blog/by Cyrus Mehta

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:

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 Impact of Obamacare on Green Card Holders Who Reside Outside the United States

March 31, 2014/0 Comments/in Blog/by Cyrus Mehta

By Gary Endelman and Cyrus D. Mehta

Unlike many, if not most countries, the long reach of Uncle Sam’s tax laws extend far beyond geographic boundaries to affect citizens and lawful permanent residents (LPR) on an extraterritorial basis. Status not physical presence triggers the tax obligation. The need for LPRs living abroad to comply with US tax regimes is another example of how, since enactment of the Immigration Reform and Control Act of 1986, immigration has become increasingly and inextricably intertwined with all other aspects of American life and law. Beyond that, lawful permanent residence is not only a legal status but an economic one as well with tax implications that intimately affect the maintenance of such status and the fiscal consequences of its continued exercise. The impact of the individual health care mandate under the Affordable Care Act (ACA), also popularly known as Obamacare, upon LPRs who reside overseas is the most recent example of a growing tension between a domestically focused immigration policy and the increasingly global nature of both individual and national economic conduct in the global economy of the 21^st century.

A number of LPRs, also known as green card holders, temporarily live outside the United States for a variety of legitimate reasons. In a globalized world, LPRs may more readily find employment assignments in other countries or they may need to be outside the United States to look after a sick relative. 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 been subject to interpretation by the Circuit Courts, and although the LPR may remain outside the United States for an extended period of time, the visit may still be considered temporary so long as there is an intention to return. 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.

For a more extensive review on this subject, we refer you to our article, Home Is Where TheCard Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849, July 1, 2008.

With the deadline period for enrollment on March 31, 2014, a number of non-citizens, including LPRs, are eligible for health care benefits under the ACA. The ACA requires all “applicable individuals” including LPRs to maintain “minimum essential health coverage,” and the failure to do so will result in a penalty when they file their federal income tax returns for year 2014 onwards. The “minimum essential coverage” is required on a monthly basis, but only during those months that qualify people as applicable individuals.” On March 26, HHS released guidance which clarifies that many consumers who were unable to enroll through the marketplace before the March 31 deadline are eligible for a special enrollment period (SEP). The SEP gives qualifying consumers additional time to get health coverage without being assessed a penalty. To be eligible for the SEP, the consumer must have experienced one of the barriers identified in the guidance. These barriers include experiencing errors related to immigration status and being transferred between the marketplace and state Medicaid/CHIP agency. The additional time available to apply depends on the specific barrier and when it is resolved.

An LPR residing outside will need to purchase health insurance under the ACA. There are circumstances under which LPRs can still be deemed to be maintaining minimum essential coverage even when they are outside the United States if they meet the Internal Revenue Service test for shielding their foreign income from US taxation.

Under 26 CFR 1.5000A-1, “An individual is treated as having minimum essential coverage for a month—

(i) If the month occurs during any period described in section 911(d)(1)(A) or section 911(d)(1)(B) that is applicable to the individual”.

In turn, section 911(d)(1) provides:(d) Definitions and special rules
For purposes of this section—

(1) Qualified individual

The term “qualified individual” means an individual whose tax home is in a foreign country and who is—

(A) a citizen of the United States and establishes to the satisfaction of the Secretary that he has been a bona fide resident of a foreign country or countries for an uninterrupted period which includes an entire taxable year, or

(B) a citizen or resident of the United States and who, during any period of 12 consecutive months, is present in a foreign country or countries during at least 330 full days in such period.

Section 911 of the Internal Revenue Code allows certain US citizens and LPRs to shield their foreign income from US taxation by virtue of living outside the United States. The foreign earned income exclusion for 2013 is $97, 600.

Since the full consequences of decisions on Obamacare will not become plainly evident until April 2015, any interpretations advanced now must be necessarily both preliminary and tentative, subject to modification if and when the IRS provides future guidance. It is this continuing involvement of the IRS, as well as the byzantine complexity of the ACA itself, that commends a healthy dose of modesty to all commentators. LPRs who are eligible to take the section 911 exemption because they are not physically present in the United States for a full 330 days within a 12 month consecutive month period are treated as having minimum coverage for that 12- month period. It is still not clear whether LPRs would have to elect to claim the foreign earned income exclusion by filing Form 2555 with their tax returns so that they be deemed to have minimum essential coverage or whether the IRS will develop a special form for that purpose.

While it is true that only a US citizen can claim the bona fide resident of a foreign country exception, an LPR, if s/he is also tax resident in a county with which the US has an income tax treaty, can use the bona fide residence test pursuant to the treaty’s nondiscrimination provisions to also claim the foreign earned income exclusion. The bona fide residence test can be utilized even if the individual has not been physically present in the United States for 330 or more days. If that is the case, can a non US citizen of a treaty country also claim minimum coverage under the ACA?

For example, the nondiscrimination provision of the US-India tax treaty, states in relevant part:

Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected. This provision shall apply to persons who are not residents of one or both of the Contracting States.

This language in the US-India tax treaty would seem to apply to the ACA health mandate exemption, since it is taxation or a requirement connected therewith. After all, the Supreme Court in National Federation of Independent Businesses v. Sebelius, especially Chief Justice Roberts’ opinion, upheld the constitutionality of the health mandate in the ACA by characterizing it as a tax. “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” according to Chief Justice Roberts. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” the Chief Justice further opined. While the commerce power apparently has its distinct limits for the Roberts Court, the power to tax does not. For this reason, Solicitor General Donald Verelli, who suggested the possible utility of such reasoning to the Court, may turn out to have singular, if unexpected importance.

On the other hand, it could be argued that the ACA statutes refer only to section 911 and not to treaties. Also, the treaties define the scope of their application, which may have to be revised to include the ACA penalty. The US-India treaty, for example, applies to the following US taxes:

“In the United States, the Federal income taxes imposed by the Internal Revenue Code (but excludingthe accumulated earnings tax, the personal holding company tax, and social security taxes), and the excise taxes imposed on insurance premiums paid to foreign insurers and with respect to private foundations (hereinafter referred to as “United States tax”)”

Therefore, unless the IRS provides more specific guidance, it is not clear at this time whether an LPR who takes the bona fide residence exception for purposes of shielding foreign income can also be deemed to have the minimum essential coverage.

LPRs who seek to claim a section 911 type foreign earned income exclusion to get out of the mandate under ACA should beware of adverse consequences on their LPR status. Living outside the United States for 330 days or more in itself could lead to a finding of abandonment if the LPR cannot successfully establish that his or her visit abroad was temporary under Singh v. Reno, supra. Even if LPRs assert that their trip abroad was temporary, claiming a section 911 benefit to avoid the health insurance coverage under Obamacare could bolster the government’s charges that they abandoned their status. As we discussed in The Taxman Cometh: When Taking a Foreign Earned Income Exclusion On Your Tax Return Can Hurt Your Ability To Naturalize, taking a section 911 exemption can also impair the applicant’s ability to show that he or she did not disrupt continuity of residence during the relevant 5 or 3 year period. INA § 316(b) states that an absence from the United States of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. Indeed, utilizing the bona fide residence exception, if it is allowed for LPRs under the ACA, would be more perilous than the physical presence exception as the individual must declare a residence in a foreign country. Another issue worth noting for people who claim bona fide residence under tax treaties is that they must file Form 8833 to do so. Page 4 of the instructions to that form warns that this sort of bona fide residency claim for an LPR under a tax treaty triggers the exit tax for Long Term Residents (LTR):

If you are a dual-resident taxpayer and a long-term resident (LTR) and you are filing this form to be treated as a resident of a foreign country for purposes of claiming benefits under an applicable U.S. income tax treaty, you will be deemed to have terminated your U.S. residency status for federal income tax purposes. Because you are terminating your U.S. residency status, you may be subject to tax under section 877A and you must file Form 8854, Initial and Annual Expatriation Statement. You are an LTR if you were a lawful permanent resident of the United States in at least 8 of the last 15 tax years ending with the year your status as an LTR ends.

LPRs who live outside may wish to seek other ways to claim minimum essential coverage under the ACA if they do not wish to risk jeopardizing their green cards or their ability to naturalize in the future. For instance, LPRs who have health insurance provided by foreign insurers may qualify as having minimum essential coverage if the coverage is recognized by the Secretary of Health and Human Services. Coverage under group health plans provided through insurance regulated by a foreign government may also be recognized as minimum essential coverage, depending on specific circumstances and whether those plans have received U.S. approval. There are also the following statutory exemptions:

Religious conscience. Membership of a religious sect that is recognized as conscientiously opposed to accepting any insurance benefits. The Social Security Administration administers the process for recognizing these sects according to the criteria in the law.

Health care sharing ministry. Membership of a recognized health care sharing ministry.

Indian tribes. (1) Membership of a federally recognized Indian tribe or (2) an individual eligible for services through an Indian care provider.

Income below the income tax return filing requirement. If the individual’s income is below the minimum threshold for filing a tax return. To find out if you are required to file a federal tax return, use the IRS Interactive Tax Assistant (ITA).

Short coverage gap. Going without coverage for less than three consecutive months during the year.

Hardship. Suffering a hardship that makes one unable to obtain coverage, as defined in final regulations issued by the Department of Health and Human Services.

Affordability. Unable to afford coverage because the minimum amount the individual must pay for the premiums is more than eight percent of household income.

Incarceration. Being in a jail, prison, or similar penal institution or correctional facility after the disposition of charges against the individual.

Not lawfully present. Not being a U.S. citizen, a U.S. national or an alien lawfully present in the United States.

LPRs can also avail of the short coverage gap exemption. In general, a gap in coverage that lasts less than three months qualifies as a short coverage gap. If an individual has more than one short coverage gap during a year, the short coverage gap exemption only applies to the first gap.

LPRs who fail to maintain the required minimum essential coverage must pay a penalty known as the “individual shared responsibility payment.” In general, according to the IRS, the payment amount is either a percentage of your income or a flat dollar amount, whichever is greater. The individual will owe 1/12^thof the annual payment for each month he or she (or dependents) do not have coverage and are not exempt. The annual payment amount for 2014 is the greater of:

1 percent of household income that is above the tax return threshold for the indvidual’s filing status, such as Married Filing Jointly or single, or

the family’s flat dollar amount, which is $95 per adult and $47.50 per child, limited to a maximum of $285.

The individual shared responsibility payment is capped at the cost of the national average premium for the bronze level health plan available through the Marketplace in 2014. The individual will make the payment when he or she files the 2014 federal income tax return in 2015.

For example, a single adult under age 65 with household income less than $19,650 (but more than $10,150) would pay the $95 flat rate. However, a single adult under age 65 with household income greater than $19,650 would pay an annual payment based on the 1 percent rate.

If an LPR chooses to pay the penalty instead of purchasing insurance, and fails to pay the penalty or delays in making the payment, this would need to be disclosed on an N-400 application relating to whether the applicant owes any taxes. This too could jeopardize the naturalization application, and would bring the penalty section of the ACA directly into the context of immigration issues. Furthermore, an LPR opting for the penalty over health insurance may create the impression, whether intentional or unintended, that he or she may not be maintaining ties with the US, further bolstering the government’s charge of abandonment of LPR status.

The ACA is connected to immigration issues, and it behooves a careful practitioner to review the provisions of the ACA as they apply to non-citizens, and LPRs in particular. The interconnectedness of all these issues to the authors is the larger and more widely significant point, such as how seeking an exemption from the health insurance mandate can trigger potential loss of LPR status, invocation of the exit tax, or the ineligibility to become a US citizen in the future. No longer can any of these decisions be made in a vacuum without consideration of the broader consequences. The practice of immigration and tax law must invite the collaboration of experts from both disciplines.

Any consideration of the possible adverse consequences resulting from a decision to seek an exemption from the individual mandate imposed by the ACA must be informed by an understanding of the fact that an extended absence from the United States, without more, should never serve as the basis for involuntary abandonment of LPR status. We live in a global economy where international relocation is often the price for career advancement and 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 manifests or overtly states an intention to give it up. No inference from proven conduct can be possible absent compelling evidence that such was the desired and intended consequence. Application of this caution to the debate over Obamacare would properly reflect the profound importance of LPR status while also serving as a recognition of the enormous and continuing contributions that such permanent residents have made and continue to render to their adopted home.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan)

FREE THE CHILDREN: PARENT’S ABANDONMENT OF GREEN CARD SHOULD NOT BE IMPUTED ON CHILD

December 2, 2013/1 Comment/in Blog/by Cyrus Mehta

There are a number of unfortunate cases where the parent abandons lawful permanent resident (LPR) status by staying outside the United States resulting in the child’s LPR status also being abandoned. Should the child’s LPR status be deemed abandoned even if the child had no intention to abandon that status?

The answer, unfortunately, is “Yes,” but there might still be grounds for putting up a fight. There is a precedent decision of the Board of Immigration Appeals, Matter of Zamora, 17 I&N Dec. 395 (BIA 198), which holds that if the parent abandons his or her LPR status while the child is in the custody and control of the parent, then the parental abandonment may be imputed to the child. The reasoning in Matter of Zamora is based on the premise that a minor child cannot legally possess an intent to remain in the United States distinct from his or her parent’s intent. Even the State Department’s Foreign Affairs Manual acknowledges that a child under the age of 16 years is not considered to possess a will or intent separate from that of the parent with regard to a protracted stay abroad. 9 FAM 42.22 N5.

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 been subject to much 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.

Therefore, when an LPR is unable to establish that the trip abroad was temporary under the formula established in Singh v. Reno, and thus deemed to have abandoned that status, it would be imputed to the child. I question whether it is good policy as there may be a number of situations where a child may possess a separate intention from that of the parent. The Ninth Circuit Court of Appeals in Khoshfahm v. Holder, 656 F.3d 1147 (9th Cir. 2011), while affirming Zamora, raised this possibility by citing the example of LPR parents who leave the country, but leave their child in the US to attend school or live with a relative. Under the principle set forth in Zamora, the parents’ length of stay abroad, along with a lack of continuous intent to return to the US, could result in a finding that they had abandoned status, but it would be unreasonable to impute the parents’ abandonment to the child who never left the US. There are other situations too, where say an abusive parent who is an LPR takes the child abroad and does not allow the child to return back to the US. This would result in an unfair outcome, and is inconsistent with prevailing immigration policy. The Violence Against Women Act ensures that battered spouses, children and other relatives do not need to depend on the abuser’s status to apply for immigration benefits by enacting INA sections 204(a)(1)(A) and (1)(B), which allow battered spouses of US citizens and permanent residents to self-petition for permanent residency even when the abusive spouse either refuses to sponsor or has withdrawn support on a previously filed I-130 petition. The intent of an abusive parent can also be considered as analogous to the fraudulent conduct of a parent, which is not imputed to the innocent child. See Singh v. Gonzales, 451 F.3d 400, 409-410 (6th Cir. 2006).

The argument to not attribute any abandonment by the parent on the child is further bolstered when the parent legally ceases to be a custodial parent, possibly due to the abusive relationship, and this is supported by the State Department guidance at 9 FAM 42.22 N5(c), which provides:

In the case of LPR children who you believe spend more than one year outside the United States as a result of an abduction by a non-custodian parent, please contact Overseas Citizen’s Services, Office of Children’s Issues (CA/OCS/CI) and the Post Liaison Division (CA/VO/F/P) to determine the proper course of action. While a returning resident visa is the preferred way for the child to return to the United States and be admitted in the proper status, a non-custodial parent may not be willing to cooperate in order to complete the returning resident visa process. CA/OCS/CI, CA/VO/F/P, and CA/VO/L/A can advise you on options in coordination with DHS to allow the child to travel back to the United States.

The Ninth Circuit in Khoshfahm also held that a child can have his or her own intent upon reaching 18^th, which is like the State Department’s policy, although the State Department cuts off the age at 16. Thus, a child should be able to establish his or her own intent independent o the parent’s intent after 16 or at least by 18.

It was thus heartening to find an unpublished decision by Immigration Judge Philip J. Montante, Jr. on AILA InfoNet at Doc. No. 13112247 (posted 11/22/13), which held that the abandonment of LPR status by a divorced parent could not be imputed to the child who was under the age of 18 where the divorce decree specifically required the child to travel to the US to visit her father resided in order to maintain her US residency. The child was also able to demonstrate that she visited her father in the US several times. Hats off to attorney Eric Schulz in Buffalo, NY, who was the attorney for the child respondent!

When an LPR child finds himself or herself in such a situation and has been outside the US for more than a year without a valid reentry permit, the child may be eligible to apply for an SB-1 visa as a returning legal permanent resident at a US consular post. Alternatively, the child can also arrive at a port of entry in the US and be prepared to submit a Form I-193 waiver under INA section 211(b) as a returning legal permanent resident who has a valid Form I-551 (green card) but has been outside the United States for more than one year. This is risky, however, because If the child is not waived into the US, then the child will be issued a Notice to Appear, alleging that he or she is an immigrant not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the INA. The NTA will most likely charge the child as being subject to removal pursuant to INA section 212(a)(7)(A)(i)(I). Although the child will be subject to a removal hearing before an Immigration Judge, where an alien has a colorable claim to returning resident status, the government bears the burden of proving abandonment of lawful status “by clear, unequivocal and convincing evidence.” See e.g. Matadin v. Mukasey, 546 F.3d 85 (2d Cir. 2008).

Attorneys representing LPR children who have been deemed to have abandoned their LPR status through imputation should, where the facts warrant, be prepared to chip away at the principle set forth in Zamora. It is no longer fair to reflexively impute the abandonment of a parent’s LPR status onto a child, especially in situations where the child has expressed an intent contrary to the parent.

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

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

July 9, 2012/0 Comments/in Blog/by Cyrus Mehta

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.