Tag Archive for: Singh v. Reno

Cyrus Mehta

The Inappropriateness of Finding Abandonment of Lawful Permanent Residency During Naturalization

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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.

 

Cyrus Mehta

FAQ for Green Card Holders during the COVID-19 Period

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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)

 

 

 

 

 

 

 

 

 

 

 

Cyrus Mehta

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

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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.