QUESTION: I am trying to see if a relative could be helped in this situation: A mother and daughter were issued green cards in 1995 after winning the diversity visa lottery program. They lived in the U.S. as permanent residents from 1995-2006. In 2006, the family departed the U.S. so that the daughter could complete university in her home country. They then tried to come back to the U.S. after almost 3 years abroad, however, immigration officials confiscated their green cards and placed them in removal proceedings. They were issued I-94s valid through December 2010. Things have since become further complicated since the family departed the U.S. again and is now in their home country. However, they would like to come back to the U.S. to defend themselves in removal proceedings. The first attorney consulted was not optimistic about the case.
Can they come back to the U.S. to attend removal proceedings and attempt to save their permanent resident status? Is permanent resident status salvageable? Can they just return and explain at a U.S. port of entry or will they be turned back?
REPLY: Without knowing more specific details about the situations, I cannot tell you whether they can be helped. I can, however, provide you with some general information, which may be of use to you and your family in deciding whether or not you want to proceed with a defense to removal proceedings (INA § 240 proceedings).
If a lawful permanent resident (“LPR”) of the U.S. is out of the country continuously for a period of more than one year, the Department of Homeland Security (“DHS”) takes the position that residency has been abandoned. LPR status is not lost, however, until an Immigration Judge makes a final determination that such status has been abandoned following a removal proceeding. During the removal proceedings, LPRs charged with abandonment are afforded the opportunity to prove that s/he did not abandon his/her permanent residence. Factors that are considered include: (1) the purpose of the departure from the U.S.; (2) the existence of a fixed date on which the visit abroad terminated; and (3) the intent to return to the U.S. as a permanent residence. Evidence includes family ties, employment ties, the filing of U.S. income taxes, club memberships, mortgages in the U.S., etc. There is a leading case on abandonment that was issued by the Board of Immigration Appeals in 1988: Matter of Huang.
If the family wants to return to the U.S. in order to attend removal proceedings, they can do so. In the case of non-citizens who must enter the U.S. in order to attend removal proceedings, the DHS likes to permit entry in “parole” status. Such is a relatively common request made at our local port of entry, which is only a few miles from the Immigration Court here in Buffalo. Because of the proximity to the court and the frequency of travel into the U.S. in order to attend removal proceedings, advance contact is not always needed prior to the application for admission at the port of entry here in Buffalo. However, in some special cases we recommend contacting the port officials in advance. I cannot tell you whether this is necessary at the particular port of entry that your family will seek entry without knowing more about their backgrounds and the particular port of entry that they will be using.
Again, this information is general and may not apply to the specific facts of your aunt and niece’s case. If you would like to submit additional information about the case and receive a complete professional analysis, I recommend contacting my office to set up a consultation.