1. Introduction

As a lawful permanent resident (LPR), you have the “privilege” to “resid[e] permanently” in the U.S.^[1] But “permanently” does not mean unconditionally. Under the Immigration and Nationality Act,

The term “permanent” means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.^[2]

There are a number of situations in which you can lose LPR status—conviction of certain crimes, for example.^[3] This article focuses on the situation where LPR status is lost due to abandoning the U.S. as your “residence.”

The term “residence” means one’s “place of general abode” or, in other words, one’s “principal, actual dwelling place in fact.”^[4] Think of your residence as being the place you sleep most nights.

An LPR abandons his or her status by making a trip abroad that’s not “temporary.”^[5] Many LPRs believe the “enticing, false, and frequently fatal” myth that as long as they return to the U.S. within a particular period of time, such as once every six months or once a year, they will not risk losing LPR status.^[6] Unfortunately, there’s no bright-line rule for what “temporary” means.^[7]

Part 2 of this article gives an overview of the requirements for entering the U.S. as a returning resident.

Part 3 discusses the importance of keeping a valid entry document. This is typically an unexpired Form I-551, Permanent Resident Card (i.e, green card), used to seek entry after an absence of less than 1 year, or an unexpired reentry permit.

Part 4 of this article discusses what absences from the U.S. may be considered “temporary” by U.S. government agencies and courts.^[8] For a trip abroad to be considered temporary, one must intend at the time of departure and throughout the entire trip to return to the U.S. as a place of employment or business or as an actual home.^[9] The government will look for both subjective and objective evidence of intent.

Part 5 discusses what to do if you lack a valid entry document. You may be able to file a Form I-131A, Application for Travel Document (Carrier Documentation), or apply for an SB-1 visa at a U.S. embassy or consulate. Or you may be able to file a Form I-193, Application for Waiver of Passport and/or Visa, with CBP at a port of entry.

Part 6 discusses the procedure for applying to CBP for admission at port of entry, including dealing with an accusation by the CBP officer that you have abandoned LPR status or lack a valid entry document. If the officer refuses to admit you, the officer may issue a Form I-862, Notice to Appear (NTA). An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings against them.

Part 7 discusses removal proceedings in immigration court.

A topic beyond the scope of this article is the Form I-407, Record of Abandonment of Lawful Permanent Resident Status. This form is designed to serve as a person’s abandonment of status as an LPR. Many persons are under the mistaken belief that simply because they have moved abroad or their green card has expired they are no longer LPRs for tax purposes. This is incorrect. Just moving abroad or allowing a green card to expire does not constitute abandonment of LPR status for tax purposes.^[10] But that can be accomplished by filing a Form I-407. For more on that topic, see Gary Chodorow, Guide to Form I-407, Record of Abandonment of Lawful Permanent Resident Status (Dec. 31, 2019).

2. Requirements for Entering the U.S. as a Returning Resident

If you are seeking to enter the U.S. as a returning resident, be aware of these requirements to be admitted by the CBP officer at the port of entry:

1. Valid entry document: A person seeking admission as a returning resident needs a valid entry document.^[11] See Part 3 below for details.
   
2. Passport:
   • A returning resident applying for admission to the U.S. is not technically required to hold a passport if they have a reentry permit (or a Form I-551, Permanent Resident Card, if seeking readmission after a temporary absence of less than 1 year).^[12]
   • But you will probably need a passport from your country of citizenship to travel to a foreign country. Some foreign countries will issue visas and allow entry and exit to a reentry permit holder with no passport, as explained in Part 1.1 of our firm’s Guide to Reentry Permits.
     
3. You will be ineligible to enter the U.S. if the CBP officer determines that you have abandoned LPR status by staying abroad on a basis that is not “temporary.” For details, see Part 4 below.
   
4. An LPR seeking readmission to the U.S. is subject to the grounds of inadmissibility. These grounds prohibit the admission of certain classes, such as persons convicted of specified crimes or likely to become public charges.^[13] See our firm’s article, Grounds of Inadmissibility under U.S. Immigration Law, https://lawandborder.com/grounds-of-inadmissibility/.

3. Keeping a Valid Entry Document

A person seeking entry or boarding or admission to the U.S. as a returning resident must present one of the valid entry documents listed below to CBP.^[14]

(If you are abroad but have no valid entry document, read Part 4 about what to do.)

3.1 Immigrant Visa

A valid, unexpired immigrant visa is an acceptable document to present to CBP. Immigrant visas include an annotation that “Upon endorsement serves as temporary I-551 evidencing permanent residence for one year.” Once stamped by CBP upon the initial entry to the U.S. with the visa, the visa and stamp serve as temporary evidence of LPR status for 12 months.

3.2 Form I-551 Permanent Resident Card

A valid, “unexpired” Form I-551, Permanent Resident Card is acceptable to present to CBP, “if seeking admission after a temporary absence of less than 1 year.”^[15] The term “unexpired” has a special meaning:

a permanent resident card shall be regarded as unexpired if the rightful holder embarked or enplaned … before the first anniversary of the date on which he or she departed from the United States, provided that the vessel or aircraft on which he or she so embarked or enplaned arrives in the United States or foreign contiguous territory on a continuous voyage.^[16]

In sum, a Form I-551 is acceptable to present to CBP if (a) it is unexpired on its face or if the holder enplaned within 1 year of departing the U.S., and (b) the holder is seeking admission after a temporary absence of less than 1 year.

There are several special situations^[17]:

• Crew members: A valid unexpired Form I-551, even if seeking readmission after an absence of one year or more, if regularly serving on board a vessel or aircraft of U.S. registry seeking readmission after any temporary absence connected with duties as a crew member.
  
• I-751 or I-829 receipt notice: An expired Form I–551, Permanent Resident Card, accompanied by a filing receipt extending the validity of the card for a period which has not yet expired, for either a Form I–751, Petition to Remove the Conditions on Residence, or Form I–829, Petition by Entrepreneur to Remove Conditions, if seeking admission or readmission after a temporary absence of less than 1 year;
  
• I-90 receipt notice: An expired Form I-551 accompanied by a filing receipt extending the validity of the card for a period which has not yet expired, for a Form I-90, Application to Replace Permanent Resident Card, if seeking readmission after a temporary absence of less than one year^[18];
  
• U.S. Government employees: A Form I–551, whether or not expired, presented by a civilian or military employee of the United States Government who was outside the United States pursuant to official orders, or by the spouse or child of such employee who resided abroad while the employee or serviceperson was on overseas duty and who is preceding, accompanying or following to join within 4 months the employee, returning to the United States; or
  
• American University of Beirut Employees: Form I–551, whether or not expired, or a transportation letter issued by an American consular officer, presented by an employee of the American University of Beirut, who was so employed immediately preceding travel to the United States, returning temporarily to the United States before resuming employment with the American University of Beirut, or resuming permanent residence in the United States.
  

3.3 Reentry Permit

If you plan to travel abroad for one year or more you should apply for a reentry permit.^[19] A reentry permit is an entry document which can be issued by USCIS valid for multiple entries to the U.S. for up to two years from the date of issuance.

Also, even if each trip you make abroad will be shorter than one year, if you will be spending long periods abroad, it may be wise to apply for a reentry permit. The reason is that USCIS approval of a reentry permit involves determining that the proposed trip abroad will be temporary, so if you reenter the U.S. with that reentry permit after an absence consistent with the purpose explained in the reentry permit application, then CBP is unlikely to disagree with USCIS’ position by determining that the trip wasn’t temporary.^[20] Important exceptions are that you wouldn’t benefit from that leniency if there was fraud or misrepresentation^[21] in the application for the permit, or if later your reasons for staying abroad differ from the reasons you listed in your application.

A reentry permit is applied for using Form I-131, Application for Travel Document. A reentry permit is available only to an LPR who “intends to depart temporarily” from the U.S.^[22] The application must state the reasons for and the length of the intended absence.^[23] You must apply before leaving the U.S.^[24] You will also be required to appear at an Application Support Center to provide biometrics (fingerprints, photograph).^[25] It is permissible to depart the U.S. while the application is pending.^[26] Approval of the application by USCIS is discretionary.^[27]

Subsequent applications can be filed by an LPR physically present in the U.S. However, a person who since becoming an LPR has been outside the U.S. for more than four of the last five years will be limited to a one-year reentry permit, except for persons traveling on U.S. government orders, international organization employees, and professional athletes.^[28]

For more about reentry permits, see Gary Chodorow, Guide to Reentry Permits.

3.4 Refugee Travel Document

A valid, unexpired Form I–571, Refugee Travel Document, properly endorsed to reflect admission as a lawful permanent resident, is an acceptable document to present to CBP.

4. Keeping Your Absences from the U.S. “Temporary”

4.1 How “Temporary” Is Defined

As a lawful permanent resident (LPR), you have the “privilege” to “resid[e] permanently” in the U.S.^[29]

However, there are a number of situations in which you can lose LPR status—conviction of certain crimes, for example.^[30] This article focuses on the situation where LPR status is lost due to abandoning the U.S. as your “residence.”

The term “residence” means one’s “place of general abode” or, in other words, one’s “principal, actual dwelling place in fact.”^[31]

To return to the United States from abroad, an LPR must show that their stay abroad was “temporary.” In other words, an LPR abandons his or her status by making a trip abroad that is not “temporary.”^[32]

As a practical matter, CBP keeps a lookout for individuals who have been abroad for six months or more. And CBP keeps a lookout for “touchdown” cases, meaning cases where the LPR returns to the U.S. once every six months or so for a few days but has no other strong ties to the country.

It’s worth mentioning that sometimes CBP officers’ cursory inspections fail to uncover LPRs who have abandoned their status. Admission to the U.S. doesn’t solve this problem. You could still be charged later with abandonment.^[33] This could happen when, for example, you subsequently apply for admission to the U.S. or when you apply for naturalization.

The most concise definition of temporary comes from the U.S. Court of Appeals for the Ninth Circuit:

we hold that a permanent resident returns from a “temporary visit abroad” only when (a) the permanent resident’s visit is for “a period relatively short, fixed by some early event,” or (b) the permanent resident’s visit will terminate upon the occurrence of an event having 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 [live in] the United States during the entirety of his visit.^[34]

Notice that maintaining LPR status during a prolonged absence abroad requires intention to return to the U.S. upon the occurrence of a specified event, but abandoning LPR status can be done unintentionally.^[35] In particular, a person abroad for a prolonged period with the plan to “let’s see what the future holds” has abandoned LPR status.^[36] Nor is it sufficient to intend to return “at some indefinite time in the possibly distant future.”^[37]

Similarly, it’s not enough to think, “I want to keep my LPR status.” ^[38] Instead, the intention must be to keep the stay abroad “temporary” as defined above.

The intention of the individual is the controlling factor. But since courts find it difficult to determine a person’s subjective intent, courts also try to understand intent by focusing on objective factors, such as:^[39]

• purpose for departing
• intended termination date
• place of employment
• place of actual home
• property holdings
• business affiliations
• time lived in the U.S. versus time lived abroad
• family ties
• other factors

Courts compare the strength of such ties that an individual has in the U.S. versus abroad.^[40]

4.2 Purpose for Departing

An LPR should normally have a definite reason for proceeding abroad temporarily.^[41]

Education or Training

Education or professional training may qualify as discrete, temporary purposes for foreign travel.^[42] Additional evidence clarifying that travel abroad for education or training is merely temporary could include refusals from similar programs at U.S. based universities or evidence that the course of study or training is only available abroad.^[43] Other helpful factors include returning to the U.S. during vacations from school or training, having family in the U.S., and owning property or bank accounts in the U.S.^[44]

Employment for a Foreign Company

Taking permanent or open-ended employment abroad is a strong sign of abandonment of LPR status.^[45] However, temporary employment abroad may qualify as a temporary purpose. Evidence that employment is temporary may include:

• a written employment contract with an express termination date and goals that can clearly be accomplished in a temporary period, such as a specific business project or opening a new office or branch abroad;^[46] and
• having paychecks directly deposited to a U.S. bank account.^[47]

Weak or contradictory evidence as to whether an overseas job is temporary can doom a case. For example, a woman was found to have abandoned her LPR status where she accompanied her husband to Japan, where he signed a five-year employment contract and undertook a Ph.D. program. The woman initially testified that the family would return to the U.S. upon completion of the employment contract, but that was contradicted by a letter from her husband that he intended to remain in Japan to complete the Ph.D. program. The Board of Immigration Appeals held that the record “has not shown a clear demarcation” as to when the husband would return to the U.S.^[48]

Courts will also consider why the individual sought employment abroad. In one case, a man who had recently completed a computer science master’s degree claimed he went abroad temporarily because he was unable to find work in his field and had mounting debt. He signed a two-year contract with a foreign university and renewed it twice. He claimed that he returned to the U.S. to look for work but couldn’t find it and that he maintained membership in several professional organizations. The court affirmed the agency’s decision to ignore the man’s “self-serving” testimony that he had been looking for a job because he presented no supporting evidence. The court affirmed the agency’s finding that the man intended to work indefinitely with the foreign university.^[49]

Employment for a U.S. Company

If the overseas employer is a U.S. company, even indefinite employment abroad may be considered temporary. According to the leading case, Matter of Kane:^[50]

The traveler should normally have a definite reason for proceeding abroad temporarily…; examples are … indefinite employment abroad when assigned by one’s United States employer, Matter of Wu, 14 I. & N. Dec. 290 (Reg. Comm’r 1973), Matter of Manion, 11 I. & N. Dec. 261 (Dist. Dir. 1965).

The rationale for these holdings is related to INA § 316(b), which provides that certain LPRs employed abroad for U.S. companies can file a Form N-470, Application to Preserve Residence for Naturalization Purposes, to seek an exemption from the continuous residence requirement for naturalization:

one purpose of section 316(b) was to benefit an American firm engaged in developing international trade by permitting its lawful permanent resident aliens to retain the continuity of their residence for naturalization purposes while employed abroad by such firm. It is inconsistent with the objectives of section 316(b) to hold that an alien who has been found eligible for the benefits thereof has lost his status as a permanent resident solely because of his extended absences abroad in the employment of the American firm.

Matter of Wu, 14 I. & N. Dec. at 293.

The facts of Matter of Manion are striking. At the time he was granted LPR status, he had been employed abroad for a U.S. corporation for about 15 years. Just 4 days after obtaining LPR status, he applied for and was granted a reentry permit to continue that work abroad. The district director held that it had been error to deny him a new reentry permit five years later because his work abroad was “temporary” even though it was indefinite. (He “hopes” to return to the U.S. when “it is possible.”).^[51]

The facts of Matter of Wu are also illustrative. He had worked abroad for about 4 years after becoming an LPR, and he had no timeline to return to the U.S. except that it would be “upon termination of his assignment abroad.” His work involved the development of foreign trade and commerce of the U.S. Notably, he had an approved Form N-470, Application to Preserve Residence for Naturalization Purposes.^[52]

Work to Qualify for Pension

Alvarez v. Dist. Director, 539 F.2d 1220, 1225 (9th Cir.1976) (petitioner abandoned LPR status where she spent 11 months of each year in the Philippines, where she worked to increase her retirement annuity).

Accompanying a Spouse Employed Abroad by a U.S. Company

A lawful permanent resident (LPR) is abroad “temporarily” if she is abroad solely to accompany her U.S. citizen husband while employed abroad by a U.S. company.

While there does not appear to be any direct authority for this proposition, it is nonetheless clear. Consider an analogy. The above-cited cases stand for the proposition that it would be inconsistent with the statutory scheme to hold that an LPR exempt from the continuous residence requirement for naturalization under INA § 316(b) based on his employment for a U.S. company abroad has nonetheless abandoned LPR status due to such employment.

A separate statutory provision, INA § 319(b), provides that the spouse of a U.S. citizen employed abroad by a U.S. company is wholly exempted from the usual continuous residence and physical presence requirements for naturalization. The policy behind this “expeditious naturalization” statute is to benefit Americans firms engaged in developing international trade by allowing them to employ U.S. citizens abroad without the need for their LPR spouses to make the tough choice between either remaining in the U.S. to meet the residence requirement for citizenship or accompanying the U.S. citizen abroad.^[53]

Just as in the above-cited cases, it would be inconsistent with the statute to hold that a wife eligible for “expeditious naturalization” on the basis of her husband’s employment for a U.S. company abroad has nonetheless abandoned LPR status.^[54]

Liquidating Foreign Assets

Travel abroad to liquidate one’s foreign assets may be a temporary purpose. Matter of Kane, 15 I. & N. Dec. at 262-263 (“The traveler should normally have a definite reason for proceeding abroad temporarily… examples are … liquidation of assets, Matter of Souqi, 14 I. & N. Dec. 390 (Reg. Comm’r 1973). Receipts for the sale of foreign property should be kept in such cases.

For example, Matter of Souqi involves a permanent resident’s application for a reentry permit. He had entered the U.S. solely to visit his son, a foreign student, and he sought the reentry permit in order to return to Kuwait for a period of two years to sell his house and bring his family to the U.S. The regional commissioner explained Souqi’s eligibility for a reentry permit as follows:

There is nothing unusual about alien immigrants not having sold their homes or businesses prior to their coming to the United States. The American Consuls specifically warn them against doing so prior to issuance of their visas….

[Souqi] has undergone the time consuming and expensive process of traveling to the United States to be lawfully admitted for permanent residence. We do not believe these procedures are undertaken lightly….

It is our opinion that the present circumstances of the applicant, a need to dispose of specific holdings and arrange to bring his immediate family to the United States for permanent residence, are precisely one of the sets of circumstances contemplated by section 223 of the Act [which allows issuance of a reentry permit to a permanent resident intending to make a “temporary” trip abroad].

Similarly, in Khodagholian v. Ashcroft, 335 F.3d 1003 (9th Cir. 2003), the court held that the noncitizen’s purposes for traveling abroad—selling the family’s foreign home–supported the conclusion that a 15-month trip abroad was temporary. The Court noted that selling the house was “inconsistent with an intent to remain in Iran.” Id. at 1008. In that case, the LPR’s wife and children remained in the U.S. Upon arriving in Iran, the LPR was told by Iranian authorities that his departure would be barred until he paid off an overdue tax bill. After he paid the bill, he stayed on in Iran for 4 more months in order to pay back the debt he incurred to pay off the tax bill.

And travel abroad to settle the affairs of a relative who has passed away may be a temporary purpose.^[55]

But see Matter of Schonfeld, 10 I. & N. Dec. 669 (BIA 1963), holding that applicants who do not have, and have never established, an actual residence in this country having been physically present in the U.S. less than 2 months during a 4-year period following their admission for LPR status, are ineligible for reentry permits where their proposed departure is for purposes of operating a foreign business, where they intended to “wait for a better time to liquidate” that business.).

Illness

One’s one illness or the need to care for an ill relative is often mentioned as the purpose for travel abroad. Important evidence in such cases includes medical records proving the illness,^[56] the role of any other relatives in providing care,^[57] and documentation of ongoing intent to return to the U.S. Perhaps most important is evidence of whether death or recuperation could reasonably be expected to end the need for staying abroad within a relatively short period. It is also relevant whether the LPR makes other ties, such as employment ties, during the period abroad. For example:

• An LPR lived abroad for 9 years to care for her parents but visited the United States periodically. During those years, her mother passed away and she continued to live abroad to care for her father. The court held that she was not returning to the United States after a “temporary” trip abroad. Instead, she was living abroad on an indefinite basis and would probably have sought to continue to do so as long as her father was alive.^[58]
  
• An LPR stayed abroad for 2 years and 3 months to care for her ill mother, at which time the LPR’s sister came to live with the mother and assumed the LPR’s role in the mother’s care. The court stated in dicta that this portion of the LPR’s stay abroad was temporary in that it “was scheduled to terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time.”^[59]
  
• LPR status was not abandoned where an individual was abroad for 2 years and 9 months, originally with the purpose of caring for his sick grandmother and later for the simultaneous purpose of helping his sister, who was going through a divorce while caring for two small children. The court also found it relevant that the individual did not have “traditional employment” abroad, did not have significant income there, or open a bank account, or secure housing for himself.^[60]
  
• Within two months after becoming an LPR individual applied for a reentry permit and returned to her native Iraq out of fear that her family would be harmed if she did not return to her job in Saddam Hussein’s government. She believed that her family would be able to follow to join her in the United States within three years. After 26 months abroad, she returned to the U.S., but in response to calls from her husband stressing her mother-in-law’s critical health condition, two months later she returned to Iraq for another 13 months. The court held that her stay abroad was temporary, reasoning that she intended “to return within a period relatively short, fixed by some early event.” The court distinguished Singh (discussed below) on the basis that it was not practicable for her to return earlier to the United States (i.e., her family could be harmed), while Singh stayed abroad just as a matter of “convenience” while his family was waiting to immigrate.^[61]
  
• A mere statement—with no details–that an LPR stayed abroad for 5 years because she was “sick” is not enough to prove that the absence from the U.S. was temporary.^[62]
  
• Travel abroad for 5-6 months to care for dying mother and recently orphaned nephews was temporary.^[63]

If an LPR is traveling abroad to seek unique medical care that is only available outside the U.S., the trip may be considered temporary.^[64] Supporting evidence should include documents showing the medical condition, the care to be received abroad, and preferably estimated dates for treatment to end and for return to the U.S.

Waiting for Relatives to Immigrate

It can take years for an LPR to petition for a spouse and children to immigrate to the U.S. It may be problematic for an LPR to spend too much time abroad with them while they wait to immigrate. This poses a dilemma:

Because temporary visas are often unavailable and processing marital visas may take years, [LPRs] must choose to live apart [in the U.S.] or risk losing their permanent resident status.^[65]

Most of the caselaw is bad. In Moin v. Ashcroft, the court determined that an LPR had abandoned her status where she spent the majority of her time in Pakistan for five years, in part because she had returned at her parents directions to marry there, she had filed a visa petition for her husband, and she was waiting for him to immigrate. ^[66] When she did travel to the U.S., she received telephone calls from her husband expressing his loneliness and desire that she return.^[67] The Immigration Judge noted that in Pakistani culture a wife is expected to abide by her husband’s wishes, and it is unacceptable for her to live apart from her husband absent extraordinary circumstances.^[68]

In Singh v. Reno, the petitioner spent less than one-third of his time in the U.S. over a period of three years because, in part, he was waiting for his wife and daughter to immigrate on the basis of the immigrant petitions he filed for them.^[69] The court reasoned that the wife and daughter “were free to visit” the U.S. while waiting to immigrate. This reasoning is unrealistic because their intent to immigrate would often result in refusal of visitors’ visas or refusal of admission at the port of entry for failure to meet the requirement of proving nonimmigrant intent.^[70]

In Lateef v. Holder, a permanent resident left the U.S. in 1995 to marry in Pakistan and subsequently gave birth to a daughter there. She filed immigrant petitions on their behalf. She spent short periods in the U.S. but testified that in her absence her daughter missed her and developed behavioral problems. Three months after their immigrant visas were approved in November 2000, the family sought admission to the U.S., but they were refused on the basis that she had abandoned her LPR status. Her predicament was aggravated by the fact that she lied about the date of her most recent departure from the U.S., saying it was in April 2000, though it was actually in November 1999. The court affirmed the determination that she had abandoned LPR status.^[71]

In contrast, in Hana v. Gonzales, an LPR spent the bulk of a four-and-a-half year period in Iraq.^[72] Initially, it was her intention to wait in the U.S. for her family to immigrate, and she brought assets to the U.S. to apply towards buying a home and a car. But she later returned to her government job in Iraq out of fear that her family would be harmed by the regime if she refused to return.^[73] At one point during her absence from the U.S., she attempted to leave Iraq but was prohibited from doing so by the government.^[74] The U.S. Court of Appeals for the Sixth Circuit struggled to distinguish this case from Singh, explaining that the difference was that Hana was acting to protect her family from a brutal regime whereas Singh “was arguably motivated by convenience.”^[75] This distinction appears to be irrelevant because the test for abandonment is whether the absence from the U.S. is “temporary,” not on whether it is for humanitarian purposes.

Child Accompanying Parents Abroad

If a parent abandons LPR status, a minor child will normally be held to have abandoned status as well if the child is within the parent’s custody and control. The parent’s intent at the time of departure is normally “imputed” to the unemancipated child^[76] because the child is unable to form his or her own meaningful intention^[77] or because the child is “under a legal compulsion to follow and accompany his parents.”^[78]

Similarly, if the parent has not abandoned LPR status, a child living within the custody and control of the parent will not have abandoned LPR status either.^[79]

But if a parent abroad on a non-temporary basis has a separate intention for the child to return to reside in the U.S., the child may not have abandoned LPR status.^[80]

Fleeing Criminal Prosecution

Where an LPR left the U.S. during a pending drug prosecution and stayed abroad for 26 months, the Immigration Judge did not err in concluding that he abandoned LPR status by fleeing criminal proceedings and failing to maintain a continuous desire to return to the U.S. within a relatively short period.^[81]

4.3 Intended Termination Date; Flight Ticket

As mentioned above, for a trip abroad to be temporary, an LPR must possess an intention at the time of departure and throughout the entire trip to return to the U.S. as a place of employment or business or as an actual home. The LPR’s intention must be that the travel abroad will terminate “within a period relatively short, fixed by some early event.”^[82] If the return date “hing[es] on a contingency,” that contingency must have a “reasonable possibility of occurring within a short period of time.”^[83]

Purchasing a round-trip ticket with return travel to the U.S. may be helpful to prove a trip is temporary. In contrast, a round-trip ticket with return travel abroad may be regarded as evidence that an individual is merely visiting the U.S.,^[84] so is less preferable than a one-way ticket to the U.S.

If unforeseen circumstances cause a delay in returning, the trip would retain its temporary character so long as the LPR continues to have the proper intent for the trip to be temporary. For example, war might inhibit travel or the LPR might be drafted; there might be illness; there might be a death requiring remaining abroad to settle an estate.^[85] In one case, a protracted trip was still considered temporary because the LPR was forbidden from leaving the foreign country prior to answering a claim for taxes made by the government there.^[86] If a trip abroad is unexpectedly prolonged, the best practice is to document via public and private records the circumstances preventing return to the U.S.

4.4 Place of Employment

Business ties with the U.S. also function as evidence of an intention to reside within the U.S. Having a full time job within the U.S. is good evidence of intent to reside in the U.S. Where an LPR is taking temporary leave from a U.S. job in order to go abroad, it may be helpful to document the date or condition on which the leave will end.

As discussed above, having a job abroad may be evidence that a trip abroad isn’t temporary.

4.5 Place of Actual Home and Property Ties

Property ownership within the U.S. may evidence an individual’s intent to return to the U.S. Significant property may include home ownership, an extended apartment lease, bank accounts^[87], a car, and other significant assets. Keeping a credit account in the U.S. may also be a helpful tie.

Property ties to stronger when they are kept current. For example, if you rent your home to somebody else while you’re abroad, it’s helpful to have a written agreement with an expiration for the lease. If you have bank accounts in the U.S., it’s helpful to use them regularly, such as for deposit of paychecks and for paying bills. If you have a car in the U.S., keep the registration and your driver’s license current.^[88]

Liquidating property in the U.S. prior to traveling abroad is an obvious sign of abandonment of U.S. residence.^[89] Also, if property ties abroad outweigh U.S. property ties, this may be a sign of abandonment. For example, in one case, a U.S. court found that an LPR who owned a home, a condo, and bank accounts in the U.S. had nonetheless abandoned LPR status because she and her family had never resided in the home and would stay with relatives or at hotels when they came to the U.S.^[90]

4.6 Family Ties

If U.S. family ties outweigh foreign family ties, this may be evidence that an LPR intends to travel abroad only temporarily and then return to the U.S. to rejoin family. Case law takes into account the type of kin relationship and how close the ties actually are.^[91]

Having relatives, even children, who are U.S. citizens does not preclude a finding of abandonment in and of itself.^[92] The relatives must be living in the U.S. for the tie to be valuable as evidence of intent to retain U.S. residency.

Evidence in support of U.S. family ties should include marriage and/or birth certificates; documentation showing U.S. immigration status; and evidence that the relative resides in the U.S., such as school records for children, employment records, driver’s license, and deeds or leases for a home. Also important is evidence that the family and the applicant actually visit each other, such as photos.

4.7 Proportion of Time in the U.S. versus Time Abroad

As mentioned above, the length of time spent abroad is important but not determinative on the question of whether a trip is “temporary.” Similarly, the higher percentage of time spent abroad, the more likely his or her status will be called into question.^[93] This is especially true for a person who goes abroad shortly after getting LPR status.^[94] The longer an LPR stays abroad, the more important it is to take other affirmative steps showing a continuous intent to return to reside in the U.S.

4.8 Taxes

Failure to File

It is very important that LPRs required by law to file U.S. income federal and state tax returns do so while abroad, even if they are not employed by U.S. companies, because failure to file returns may indicate abandonment.^[95] LPRs are normally required to file tax returns indicating worldwide income, not just U.S. income.^[96] Payment of back taxes later would be weak evidence of continued U.S. residence.

Filing as a Non-Resident Alien

It is important that LPRs avoid claiming tax exemptions as a nonresident alien on U.S. federal and state tax returns. Doing so is presumed to be a “voluntary admission” of abandonment. According to regulations:

An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability … raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States.^[97]

For federal tax purposes, an IRS Form 1040-NR, U.S. Nonresident Alien Income Tax Return, would be used to claim such exemptions.

The government bears the burden of demonstrating by clear, unequivocal, and convincing evidence that LPR status has been abandoned.^[98] An INS memo explains that that the individual has the burden of presenting evidence to rebut or meet the presumption. But the “evidentiary burden on the alien is not great.” If “the alien presents credible evidence sufficient to make the question of [relinquishment] a genuine issue of fact” then the government again bears the burden of proof.^[99]

Foreign-Earned Income Exclusion

Certain LPRs living abroad may qualify to exclude about $100,000 of foreign earnings from taxable income. The foreign-earned income exclusion (FEIE) is claimed by filing a U.S. income tax return including Form 2555, Foreign Earned Income. To qualify, you must meet the following requirements:

1. Your “tax home” must be in a foreign country. Your tax home is the general area of your main place of business, employment, or post of duty, regardless of where you maintain your family home. Your tax home is the place where you are permanently or indefinitely engaged to work as an employee or self-employed individual. (Generally, “indefinitely” means a tax home expected to last for more than 1 year). Having a “tax home” in a given location does not necessarily mean that the given location is your residence or domicile for tax purposes.
   
2. You must have foreign-earned income. And
   
3. You must be one of the following: (a) A citizen or national of a country with which the United States has an income tax treaty in effect and who is a “bona fide resident” of a foreign country or countries for an uninterrupted period that includes an entire tax year.^[100] An entire tax year is from January 1 through December 31 for taxpayers who file their income tax returns on a calendar year basis. For this purpose, “bona fide resident” means staying in a foreign country on a basis that is “indefinite” as opposed to “definite, temporary.”^[101] Or (b) physically present in a foreign country or countries for at least 330 full days during any period of 12 consecutive months.
   

Claiming the FEIE may be a red flag for purposes of determining whether you have abandoned LPR status.^[102] In particular, filing under the “bona fide resident” prong may be particularly problematic because “bona fide residence” turns on factors including lack of definite intention as to length and nature of stay in foreign country.^[103] According to USCIS^[104]:

If the legal permanent resident declared himself or herself to be a bona fide resident of a foreign country on IRS Form 2555, that means the alien declared to the IRS that he or she went abroad for an indefinite or extended period. He or she intended to establish permanent quarters outside of the United States and he or she openly declared residence in a foreign country.

In contrast, filing under the “physical presence” test is not in itself problematic because it does not reflect the individual’s intent. Still, it confirms potentially negative facts, i.e., that you have been physically present abroad and have foreign-earned income.

In certain cases, an individual may choose to forego the “bona fide residence” FEIE and pay the tax in order to avoid a red flag indicating potential abandonment.

4.9 Other Factors

• Applying for U.S. visa: The sole fact that an individual has applied for a visitor visa to the U.S. does mean that he or she has abandoned LPR status, if time did not permit the individual to obtain a returning resident visa. Nor should the consular officer require a visa applicant to relinquish the green card as a condition to issuance of the visitor’s visa.^[105]
  
• Keeping U.S. health insurance.
  
• Applying for foreign residency or citizenship is strongly indicative of abandonment of U.S. residence.^[106]
  
• Misleading advice from an immigration official: If an LPR acts in reliance on incorrect advice from an immigration official, this is not a defense to abandonment of LPR status, at least so long as the officer was merely negligent in providing the incorrect advice.^[107]
  
• Membership in U.S. organizations
  

5. What to Do If You Lack a Valid Entry Document

This Part discusses your options if you lack a valid document for reentry as an LPR.

5.1 Form I-131A, Application for Travel Document (Carrier Documentation)

If you have been abroad for under 1 year with a green card or under 2 years with a reentry permit and you are not in possession of that document because, for example, it has been lost, stolen, or destroyed, you may file a Form I-131A, Application for Travel Document (Carrier Documentation).

Carrier documentation can also be helpful if you have been abroad for under 1 year with a green card or under 2 years with a reeentry permit, that document is expired, and the airlines (i.e., carrier) or foreign immigration authorities will not allow you to board.^[108]

The requirements are that:^[109]

1. You have been lawfully admitted to the United States as a LPR or conditional LPR;
   
2. You have not lost LPR or conditional LPR status by removal from the United States nor abandoned that status;
   
3. You have traveled abroad temporarily, and without any intent of abandoning your LPR or conditional LPR status;
   
4. You wish to return to the United States after your temporary absence of less than a year with a Permanent Resident Card or two years with a Reentry Permit; and
   
5. You are not in possession of a valid, unexpired Permanent Resident Card or Reentry Permit (for example, your card or permit was lost, stolen, destroyed, or mutilated) or other authorization to apply for admission to, or otherwise seek lawful entry into, the United States.
   

The application procedures are as follows:

• Submit the filing fee through the online payment system on the USCIS website.
  
• Apply in person at a U.S. Embassy or U.S. Consulate to file your Form I-131A. Bring your filing fee receipt and other required documents.

The carrier documentation will allow you to board an airline or other transportation carrier. The Form I-131A is filed with a USCIS international field office or with a U.S. Embassy or Consulate.^[110]

5.2 Application for an SB-1 Returning Resident Visa

If you have stayed outside the U.S. beyond the validity of your green card or reentry permit, then generally, to be eligible for an SB-1 visa, you must meet the following requirements:^[111]

1. You had the status of an alien lawfully admitted for permanent residence at the time of departure from the U.S.;
   
2. You departed from the United States with the intention of returning;
   
3. You have not abandoned this intention;
   
4. You are returning to the United States from a “temporary” visit abroad; and
   
5. “if the stay abroad was protracted, this was caused by reasons beyond [your] control and for which [you were] not responsible.”^[112]

For parts 2 and 3 of the above test, a child under age 16 is not considered to possess their own “intention.” The parent(s) same intention will be imputed to the child unless it is shown that the parent(s) have a separate intention for the child.^[113]

The burden is on you to prove that you meet those requirements, and the consular officer will deny the application unless you meet that burden of proof.^[114] Note that this is a more challenging standard than used in removal proceedings in Immigration Court, where the burden is on the government to prove that you have abandoned your LPR status, as explained below.

Many potential applicants cannot meet the requirement that the “protracted” stay abroad was for “reasons beyond [their] control.” Examples of potentially successful cases include LPRs forced to perform military service or confined to prison^[115] or a hospital bed abroad. Another example is an LPR subject to domestic abuse, where their permanent resident card and passport are confiscated by the abuser.

In another case, a mother and child were admitted for LPR status but approximately 10 months later the child was returned to Bermuda because the mother was unable to care for the child properly and work at the same time. The child remained in Bermuda for six years, most of the time in the custody of a guardian. The mother in the U.S. contributed regularly to the child’s support but never visited the child. When nearly 14 years of age, the child applied for an SB-1 visa. The State Department imputed to the child the mother’s intent to return to the U.S., as discussed above. The Department also determined that the child’s protracted stay abroad was for reasons beyond the child’s control and, therefore, had not affected the child’s status as an LPR.^[116]

The State Department also lists a number of “special cases qualifying for returning resident status”^[117]:

• Certain naturalized citizens who have lost that status while in the United States
  
• LPRs employed abroad by a U.S. employer “might not be considered to have abandoned U.S. residence” “in the absence of contrary evidence.” But “merely return[ing] to the United States for brief visits periodically” may not be sufficient to preserve LPR status.
  
• Missionaries working abroad for a “recognized” U.S. religious denomination
  
• Certain LPR students studying abroad may qualify as returning residence, if they have a definitive graduation date and other signs of intent to return to live in the U.S., such as trips to U.S., family in the U.S., property in the U.S., and a U.S. bank account.
  
• An approved Form N-470, Application to Preserve Residence for Naturalization Purposes, is prima facie evidence of entitlement to returning resident status.^[118] An N-470 may be approved in the case of:
  1. An employee under contract with the U.S. Government or a U.S. institution of research recognized by the Secretary of Homeland Security;
  2. An employee of a U.S. firm or corporation engaged in the development of foreign trade and commerce of the United States or a subsidiary thereof, more than 50 percent of whose stock is owned by an U.S. firm or corporation;
  3. An employee of a public international organization of which the United States is a member by treaty or statue and by which the alien was not employed until after being lawfully admitted for permanent residence;
  4. Any person authorized to perform the ministerial or priestly function of a religious denomination having a bona fide organization within the United States; or
  5. Any person engaged solely by a religious denomination or interdenominational mission organization having a bona fide organization within the United States as a missionary, brother, nun, or sister.

To apply for an SB-1 visa, an applicant first contacts the U.S. consulate or embassy with jurisdiction over where the applicant resides, unless the U.S. mission in the country designates a specific consular post for applications.^[119] (For example, all DS-117s in China are filed at the U.S. Consulate in Guangzhou.) The consulate will arrange an appointment for the applicant to file Form DS-117, Application to Determine Returning Resident Status.

You will need to attend an interview with the consular officer, who will decide your application. A consular manager will review that decision.^[120] If the DS-117 is approved, an immigrant visa case will be opened. If the consular post where you have not applied does not handle immigrant visa applications, the approved DS-117 and supporting documents will be forwarded to a consular post that does, where the immigrant visa case will be opened.^[121]

You will then need to apply for an SB-1 visa. An SB-1 visa applicant must not fall within the grounds of inadmissibility.^[122] A second interview is required. SB-1 visa applicants must pay application processing fees and security surcharges, file a Form DS-260 (Immigrant Visa Application), meet documentary requirements, take a medical examination, and are subject to the same processing that apply to all immigrant cases. An SB-1 applicant does not need to provide a new Form I-864, Affidavit of Support.^[123] And you only need to provide police certificates covering the period of your temporary stay abroad.^[124]

Issuance of an SB-1 visa is not a guarantee of admission as a returning resident because that decision is made by a U.S. Customs and Border Protection (CBP) officer at the port of entry. The officer should review the facts surrounding the departure and reasons for the time spent abroad. If the officer is convinced your trip abroad was merely temporary and that you remain admissible to the U.S., admission should be granted.^[125]

5.3 Form I-193, Application for Waiver of Visa

An alternative to applying for an SB-1 visa is requesting a waiver of the documentary requirement at the port of entry.

Congress gives CBP authority to waive the documentary requirement for retaining residents.^[126] Regulations promulgated pursuant to that authority state that the documentary requirement may be waived if:^[127]

1. an immigrant is returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad;
   
2. the immigrant (not the officer) “believes that good cause exists for his or her failure to present” the required document;
   
3. the immigrant is not otherwise admissible;
   
4. the immigrant merits a favorable exercise of discretion.

The prescribed form is Form I-193, Application for Waiver of Passport and/or Visa, and the fee is $585.^[128]

The application for the waiver is made at the port of entry. Waivers are not adjudicated in advance.^[129]

Denial of the waiver is not appealable “but shall be without prejudice to renewal of an application and reconsideration in proceedings before the immigration judge.”^[130] So if CBP denies the waiver, the immigrant’s inspection may be deferred to an onward office for presentation of the required documents or, if the immigrant appears to be inadmissible, the immigration officer may initiate removal proceedings under section 240 of the Act.^[131] “This process will allow those individuals verified as having once been admitted as a lawful permanent resident … full evidentiary hearing in removal proceedings under section 240 of the Act before an immigration judge to address the heavily fact-based issues of abandonment of status or other issues concerning loss of status.”^[132]

In the rare situation, where CBP has mistakenly admitted you without noticing that you lack a valid entry document, you remain subject to removal on the ground that you were inadmissible at the time of entry. One potential strategy to cure entry without a valid entry document (but not abandonment) may be to file a waiver request on a retroactive basis.^[133]

5.4 Deciding Between Applying for an SB-1 Visa or Filing I-193

To decide between these two options, you and your lawyer will need to consider a number of factors:

1. Different rules: One reason getting an SB-1 visa can be harder than getting admission is that the State Department’s rules are stricter than the rules applied by CBP. In particular, under State Department rules, “if the stay abroad was protracted, this [must have been] caused by reasons beyond the alien’s control and for which the alien was not responsible.”^[134] If you are an LPR that has stayed abroad for education or temporary work, you may be unable to prove you weren’t responsible for that decision. In contrast, CBP would probably apply the more lenient rule that “[i]f unforeseen circumstances cause an unavoidable delay in returning, the trip would retain its temporary character, so long [you] continued to intend to return as soon as his original purpose was completed.”^[135] That rule wouldn’t be a problem if your original purpose in going abroad was education or temporary work.
   
2. Risk of detention: You may prefer to apply for an SB-1 visa to reduce the risk of detention by CBP at the port of entry if a Form I-193 is denied.
   
3. Timing: Seeking admission at a port of entry may be preferable in some circumstances because the SB-1 visa application may take three to eight months, or even longer.
   
4. “Two bites at the apple are better than one”: You may prefer to first try to apply for an SB-1 visa because if denied you can still try to be admitted to the U.S. by CBP. On the other hand, you may rather apply directly for admission to the U.S. without the “black mark” of an SB-1 visa denial. While CBP is supposed to make its own decision on the waiver independent of the Consulate’s decision on the visa, it’s possible that a Consular denial will influence the CBP officer’s state of mind.
   
5. Forum shopping: Officers at one port of entry or one Consulate may be more sympathetic to a particular case than officers elsewhere.
   

6. Procedures for Returning to the U.S.

This Part discusses the procedures returning to the U.S.

Like all international travelers, LPRs are subject to inspection by U.S. Customs and Border Protection (CBP) when arriving at an airport or land port of entry.

People generally have fewer rights at the border compared to within the country due to the government’s focus on national security and border control, allowing for more leeway in searches, detentions, and removals.

In particular, CBP treats some LPRs at the port of entry as “arriving aliens” and others as “returning residents.” The first group, “arriving aliens” are in a more precarious position:

• “Arriving aliens” are subject to the grounds of inadmissibility. These grounds are a list of the reasons a foreign national can be refused admission to the United States.^[136] The burden of proof is on the government to prove by clear and convincing evidence that an LPR (a) is an “arriving alien” ^[137] and (b) is inadmissible.
  
• In contrast, “returning residents” are treated by CBP as if they never left the United States. They can enter the United States. They can only be removed if they fall within the grounds of deportability. These grounds are a list of the reasons a foreign national can be removed from the United States.^[138] The burden of proof is on the government to prove that an LPR who is an “returning resident” is inadmissible based on clear and convincing evidence.^[139]
  

Also, as explained below, if detained by U.S. Immigration and Customs Enforcement (ICE), “arriving aliens” have fewer options than “returning residents” for seeking release.

6.1 Choosing a Port of Entry

In deciding upon a port of entry (POE), factors to be considered include where you live in the U.S., common CBP practices at the port, where you have entered in the past, and what location would be best if an Immigration Court hearing is required. Land ports of entry and airports should be considered.

POEs with CBP pre-flight inspection (pre-clearance)^[140]:

• Aruba
  
• Bahamas: Freeport and Nassau
  
• Bermuda
  
• Canada: Calgary, Toronto, Edmonton, Halifax, Montreal, Ottawa, Vancouver, Victoria, Winnipeg
  
• Ireland: Dublin
  
• United Arab Emirates: Abu Dhabi
  

POEs with CBP Immigration Advisory Program: This program places CBP officers overseas to issue no-board recommendations to airlines to keep high-risk passengers form traveling to the U.S.^[141] CBP officers are posted at^[142]:

• France: Paris
  
• Germany: Frankfurt
  
• Japan: Tokyo
  
• Mexico: Mexico City
  
• Netherlands: Amsterdam
  
• Panama: Panama City
  
• Qatar: Doha
  
• Spain: Madrid
  
• United Kingdom: London Heathrow and Gatwick
  

6.2 Booking a Ticket

When you book your ticket and/or when you check in for a flight, the airlines should ask about your “country of residence.” This data is collected for the Advance Passenger Information System (APIS), which passes such data from the airlines to CBP.^[143] If your claim is that your trip abroad was temporary, then your answer should be that you reside in the United States.

6.3 Boarding a Flight

Airlines will screen passengers upon check-in to determine whether they will be allowed to enter the United States. Airlines are liable for fines if they fail to do a proper screening.

Generally, an LPR requires a valid entry document (as discussed above) to board a flight to the U.S. But, further, the CBP’s Carrier Information Guide advises airlines that a “A Lawful Permanent Resident may travel to the United States with … a Permanent Resident Card (Form I-551). Cards with expired I-551s may be boarded without penalty if the card was issued with a 10-year expiration date.”^[144]

If you experience difficulties boarding, you can ask the airline to communicate with CBP’s Regional Carrier Liaison Group (“RCLG”) for assistance with your request to allow boarding.^[145] If the RCLG cannot be reached, you can ask the airlines to contact CBP at your port of entry.

6.4 Customs Declaration

When you fill out the CBP Form 6059B, Customs Declaration, during your flight or at an automated passport control kiosk, you will again need to answer a question about your “country of residence.”^[146]

6.5 Inspection at the Port of Entry

Primary Inspection

At a port of entry, “primary inspection” is the initial screening process where, for a foreign national, a CBP officer verifies their documents, identity, and purpose of travel to determine admissibility into the United States.

Secondary Inspection

CBP could take you to a separate room for “secondary inspection.”

A referral to secondary inspection by itself is not an adverse action, but you can expect to be detained anywhere from a few minutes to several hours or longer if an issue arises. During secondary inspection, CBP will ask you questions and may collect biographic and biometric data, run record checks, and determine whether you should be admitted to the United States.

If you are detained by CBP in secondary inspection, you have the following rights:

• You have the right to contact your consulate for assistance. The consulate can help you contact a lawyer or your family.
  
• If you have a lawyer, you should ask CBP for permission to contact your lawyer. (If you are our law firm’s client, be sure to carry your lawyer’s telephone number.) Note, however, that CBP may tell you that you do not have the right to be advised by an attorney during immigration inspection.^[147]

Tip: Communicate travel plans with family or a trusted friend and create check-in procedure for flights. For example: Text or call a friend immediately upon landing in the U.S. Contact your friend again within 3 hours to confirm you have cleared Customs.

• If an immigration inspection turns into a situation where you have become the focus of a criminal investigation or are under arrest for a crime, you do have a right to an attorney. You should ask to speak with any attorney before answering any further questions. And, if you wish to exercise your right to remain silent, you should say so out loud.
  
• If you do not understand English, you may request an interpreter.
  
• You have the right to review all written statements that are prepared for you, in a language that you can understand.
  
• If you do not agree with the contents of any papers that are presented to you, you may refuse to sign them.
  
• You do not have a right of privacy that protects your mobile phone, computer, tablet, or other electronic devices. CBP may search your device and access your email and screen your social media activity during the inspection process. Your phone, laptop, or other digital device may be held and returned to you later.
  

Are You an “Arriving Alien”?

A person previously granted LPR status will be treated as an “arriving alien” if any of the following are true:^[148]

1. you have abandoned or relinquished LPR status,
   
2. you have been absent from the United States for a continuous period in excess of 180 days,
   
3. you have engaged in illegal activity after having departed the United States,
   
4. you have departed from the United States while in removal proceedings or extradition proceedings,
   
5. you have “committed” certain criminal offenses covered by INA § 212(a)(2), unless you were granted an immigration waiver,^[149] or
   
6. you are attempting to enter without inspection.
   

The burden of proof is on the government to show that you are an “arriving alien.”^[150] If the government determines that you are an “arriving alien,” they will check whether any of the grounds of inadmissibility apply to you. For example, if the government determines you are an “arriving alien” because you abandoned LPR status, CBP will charge you with being inadmissible as being an intending immigrant who hasn’t obtained a new immigrant visa under INA § 212(a)(7)(A)(i).

If you are not an arriving alien, you will be allowed to enter as a “returning resident.” The grounds of inadmissibility do not apply to you.^[151] (Still, note that like any other LP present in the United States—DHS may seek to remove you if you fall within the grounds of deportability.)

One lesson is that—all else being equal—it is preferable for trips outside the U.S. to be kept at 180 days or fewer. That’s because trips over 180 days will automatically categorize you as an “arriving alien.”

6.6 CBP Action

Once CBP inspection at the port of entry is complete, then CBP would take one of several actions described in detail below:

• Admit you to the U.S. (granting a documentary waiver, if necessary).
  
• Refer you to deferred inspection.
  
• Allow you to withdraw your application for admission.
  
• Allow you to relinquish your LPR status and be admitted as a nonimmigrant.
  
• Issue a notice to appear (NTA) for removal proceedings in Immigration Court.^[152]
  
• If you are issued an NTA, make a custody determination
  

Note that CBP does not have the power to order an LPR deported^[153] or otherwise require them to return abroad from the port of entry.

Entry/Admission to the U.S.

The best outcome is for the officer at the port of entry to allow you to enter the U.S. as a “returning resident” or admit you to the U.S. as a permanent resident after determining that you are an “arriving alien.”

Since Aug. 2022, most foreign nationals are no longer issued a physical admission stamp in their passport.

Previously, officers sometimes placed a stamp in an LPR’s passport that also included a warning about avoiding abandonment of LPR status:

Currently, such warnings may be included by a CBP officer in their electronic notes.

Deferred Inspection

Referral for deferred inspection means sending you for an appointment for inspection at a later time at a local DHS office.^[154] That appointment may be weeks or months after your arrival in the U.S. The inspector at the port of entry may make this referral if an immediate decision concerning admissibility cannot be made at a port of entry because, for example, the inspector at the port of entry does not have immediate access to relevant government records or you aren’t carrying evidence relevant to your request for admission to the U.S.^[155]

If your inspection is deferred, the inspector will give you a Form I-546, Notice of Deferred Inspection, and Form I-94, stamped with a parole stamp and endorsed to show “deferred inspection.” The inspector may keep your Form I-551, Permanent Resident Card, and may issue you a temporary I-551 until the deferred inspection is completed.

During deferred inspection, you don’t have a right to have an attorney present, but DHS may allow it as a matter of discretion,^[156] or may be willing to speak with the attorney before or after your deferred inspection appointment.

Voluntary Relinquishment of LPR Status and Admission as a Nonimmigrant

The officer may also ask if you wish to voluntarily relinquish your LPR status. In that case, you would complete a Form I-407, Abandonment of Lawful Permanent Resident Status. The officer should not pressure you in any way to sign the form.^[157]

The officer may tell you that if you complete the Form I-407 then the officer will admit you to the U.S. as a B1 visitor for business or B2 visitor for pleasure for a certain period of time. The officer has the authority to admit you in such status even if you have no visa. You may be required to sign a Form I-193, Application for Waiver of Visa.^[158]

You should not complete the Form I-407 unless you are sure you want to give up your LPR status. If you complete this form, you waive your right to a hearing in immigration court to contest your loss of LPR status. The I-407 is generally irrevocable.^[159] Once you have abandoned LPR status, you cannot get it back without applying for LPR status anew. Therefore, individuals should give very careful thought before signing the Form I-407.

If you are truly residing abroad, completing the Form I-407 may be preferable because (a) you will no longer be subject to U.S. tax on worldwide income; and (b) it may clear the way to apply later for a nonimmigrant visa at a U.S. embassy or consulate abroad, or to enter under the Visa Waiver Program.^[160]

Withdrawing Your Application for Admission

The officer may allow you to withdraw your application for admission if the officer believes you may be inadmissible. You can only withdraw if the officer agrees.^[161] The advantages would be that you would avoid the risk of being taken into custody pending removal proceedings, and you would avoid the risk of the Immigration Court ordering you removed, which would entail a ten-year ban on returning to the U.S. But the disadvantage would be that you would lose the opportunity to argue in court that you have not given up your LPR status.

Referral to Immigration Court

Finally, if it appears to CBP at the port of entry or later during deferred inspection that you are an “arriving alien” and that you fall within the grounds of inadmissibility, you will be referred to Immigration Court for removal proceedings.^[162]

Or, if it appears to CBP that you are a “returning resident” and fall within the grounds of deportability, you will be referred to Immigration Court for removal proceedings.

CBP would take each of these steps to refer you to Immigration Court:

• Take a complete sworn statement concerning all pertinent facts. (You should receive a copy, but if you do not, ask for it.)
  
• Collect any additional evidence relevant to the case discovered during the inspection process.
  
• Prepare a Form I-862, Notice to Appear (NTA), and give you one copy. An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings against them. The NTA will charge you with falling within the grounds of inadmissibility or deportability.
  
• If the government believes you have abandoned your LPR status, the NTA will state that you are an “arriving alien” who is inadmissible to the United States because you abandoned LPR status and have no new valid immigrant visa.^[163]
  
• Take your photograph and fingerprints

LPR status ends if a judge enters a final administrative order of removal.

Custody Determination

If an NTA has been issued, a U.S. Immigration and Customs Enforcement (ICE) officer must decide whether to detain you, release you on bond, or release you on “parole.”

“Arriving Aliens”

1. You are not eligible to be released by ICE on bond.^[164]
   
2. You may request parole from ICE. The term “parole” refers to allowing you to physically enter the U.S. but for legal purposes maintaining the fiction that you are still an “arriving alien” seeking admission to the United States.
   
   Parole is appropriate for “urgent humanitarian reasons” or “significant public interest” where the person presents no security risk or risk of absconding and the person fits in one of the following categories: (1) they have a serious medical condition; (2) she is pregnant; (3) certain juveniles; (4) witnesses in legal proceedings; or (5) persons “whose continued detention is not in the public interest.”^[165] ICE may require a bond and periodic reporting of whereabouts.^[166]
   
3. You may request conditional parole pursuant to INA § 236(a)(2).^[167] Unlike parole of arriving aliens under INA § 212(d)(5), an applicant for conditional parole need not prove “urgent humanitarian reasons” or “significant public interest.” It may be sufficient to show the person presents no security risk or risk of absconding.
   
4. The immigration judge lacks authority to conduct a bond hearing^[168] or to grant parole.^[169]
   

“Returning Residents”

1. You may request a bond from ICE, unless you are subject to mandatory detention by reason of being deportable on one of these bases^[170]:
   • by reason of having committed any offense covered in section 237(a)(2)(A)(ii) (conviction of a crime for which a sentence of one year or longer may be imposed), (A)(iii) (aggravated felony), (B) (controlled substances confictions, drug abusers, and addicts), (C) (certain firearms offenses), or (D) (miscellaneous crimes);
   • under section 237(a)(2)(A)(i) (crime involving moral turpitude) on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year; or
   • under section 237(a)(4)(B) (terrorist activities).
2. You may request conditional parole pursuant to INA § 236(a)(2).^[171] Unlike parole of arriving aliens under INA § 212(d)(5), an applicant for conditional parole need not prove “urgent humanitarian reasons” or “significant public interest.” It may be sufficient to show the person presents no security risk or risk of absconding.
3. You may request a bond hearing from an immigration judge.^[172]
   

Completion of removal proceedings can take months or years, so it goes without saying that remaining in custody can be an extreme hardship.

Historically, it was for the government to detain a returning LPR at the port of entry and charged with abandonment, in the absence of aggravating factors such as a criminal conviction. Most were released on their own recognizance. That jay be changing under the Trump administration.

7. Removal Proceedings in Immigration Court

7.1 Jurisdiction

If an inspector at the port of entry refers you to Immigration Court, the inspector will issue a Notice to Appear (NTA).^[173] You will be required to appear at the court with geographic jurisdiction over the port of entry,^[174] although it may be possible to request change of venue to another court for subsequent hearings.^[175]

7.2 Distinction Between Inadmissibility and Deportability Charges

If the Notice to Appear is issued at the port of entry or during deferred inspection based on a determination that you are an “arriving alien,” it will charge you with being inadmissible to the United States.

In contrast, if the notice is issued at some point after CBP admitted you to the U.S., it will charge you with being deportable from the United States.

7.3 Burden of Proof

Whether you are charged with inadmissibility or deportability, in either case the burden of proof is on DHS to prove the charge by “clear, unequivocal, and convincing” evidence.^[176]

7.4 Evidence of LPR Status, Work and Travel Abroad During Proceedings

If you have been granted LPR status, you remain an LPR so long as that status does not change.^[177] Such status terminates upon entry of a final administrative order of removal by an immigration judge or the Board of Immigration Appeals.^[178] Such status is not impacted regardless of whether you are released from detention via 212(d)(5) parole, conditional parole, or on bond. A person currently in removal proceedings is entitled to evidence of permanent resident status until ordered removed.^[179] Currently, ICE policy is that if a person is detained, their green card will be confiscated, but that if a person is released from detention while removal proceedings are pending, the card will be returned.^[180]

An LPR may continue to work and travel internationally while removal proceedings are pending. Proceedings are not terminated if a respondent leaves the U.S. while they are pending and returns for subsequent hearings. You will continue to be eligible for the same relief if you depart and return to the U.S.^[181]

Warning: Some ports of entry where individuals with pending Notices to Appear (NTAs) encountered at the time of requesting admission, are automatically now subject to detention by CBP or Enforcement Removal Operations (ERO).

The new practice has applied to legal permanent residents and conditional permanent residents in removal proceedings, even with valid I-551 stamps issued post Form I-751 denial. Overall outcomes have varied, but it is advisable for international travel be avoided by clients with an NTA.^[182]

7.5 Potential Outcomes

Here are some common outcomes in immigration court if you were found by CBP to be an “arriving alien” and the NTA charged you were inadmissible because you had abandoned your LPR status and had no new immigrant visa (INA § 212(a)(7)(A)(I))^[183]:

• Termination of Proceedings: If the judge finds that the charges are not substantiated or there are procedural issues, they may terminate the removal proceedings.
  
• Grant of Relief: If you apply for relief, such as adjustment of status, the judge may grant the relief. Adjustment of status requires that the applicant must have been “admitted” or “paroled” into the United States:
  • An “arriving alien” who has been “paroled” under INA § 212(d)(5)(A) qualifies as “paroled” for purposes of adjustment of status.^[184]
  • An “arriving alien” who has been “conditionally paroled” into the U.S. under INA § 236(a)(2)(B) does not count as “paroled” for purposes of adjustment of status.^[185]
    
• Voluntary Departure: The judge may allow the respondent to voluntarily depart the U.S. within a specified timeframe, avoiding a formal removal order.
  
• Removal Order: If the judge determines the respondent is inadmissible and no relief is available, they may issue an order of removal. In that case, you are ineligible to return for 10 years.
  
• Administrative Closure or Continuance: The immigration judge may administratively close or continue the proceedings to allow the respondent to pursue other forms of relief or due to other procedural reasons.
  

While immigration court proceedings are ongoing (a process that could take several years), it may be possible to re-immigrate through other means.^[186]

8. Conclusion

Hopefully, this article has dispelled any myth that as long as you return to the U.S. within a particular period of time, like 6 months, you will not be at risk of losing LPR status. Instead, understanding these best practices should help you to ensure you keep a valid entry document and don’t abandon permanent resident status unwittingly. Still, if there is a problem, there are steps you can take, as outlined in this article. Of course, our firm would be pleased to set up a consultation to discuss these issues with you in more detail.

1. INA § 101(a)(20) (“The term ‘lawfully admitted for permanent residence’ means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”) ↑
   

   
   

2. INA § 101(a)(31). ↑
   

   
   

3. See generally, Gary Chodorow, Rights and Obligations of Lawful Permanent Residents (Aug. 30, 2012). ↑
   

   
   

4. INA § 101(a)(33). ↑
   

   
   

5. See Part 3.1 below. ↑
   

   
   

6. Gary Endelman and Cyrus D. Mehta, Home is Where the Card Is: How to Preserve Lawful Permanent Resident Status in a Global Economy, in Immigration and Nationality Handbook 2008-2009, 581, 583. See USCIS, Welcome to the United States: A Guide for New Immigrants at 17 (Sep. 2015) (“Some immigrants believe they can live abroad and keep their permanent resident status as long as they return to the United States at least once a year, but this assumption is incorrect.”). ↑
   

   
   

7. See Chavez-Ramirez v. INS, 792 F.2d 932, 935 (9^th Cir. 1986) (calling the statute “nebulous.”) ↑
   

   
   

8. A related topic, which is beyond the scope of this article, is how to limit trips abroad in order to meet the continuous residence and physical presence requirements for naturalization. For coverage of this topic, see Gary Chodorow, Guide to Naturalization in the United States (Dec. 25, 2016). ↑
   

   
   

9. Matter of Kane, 15 I. & N. Dec. 258, 263 (BIA 1975). ↑
   

   
   

10. Treasury Regulations §301.7701(b)-1(b)(1). ↑
    

    
    

11. See Gary Chodorow, What Documents Can a Lawful Permanent Resident Use to Enter the U.S.? (July 19, 2023), https://lawandborder.com/what-documents-can-a-lawful-permanent-residentuse-to-enter-the-u-s. ↑
    

    
    

12. 8 C.F.R. § 211.2(a)(2). See CBP, Document Requirements for Air Travel (Oct. 13, 2016), https://www.cbp.gov/travel/us-citizens/whti-program-background/docs-air-travel; USCIS, International Travel as a Permanent Resident (Jan. 11, 2018), https://www.uscis.gov/green-card/after-we-grant-your-green-card/international-travel-as-a-permanent-resident. ↑
    

    
    

13. But see INA § 101(a)(13)(C) (certain LPRs absent from the U.S. for under 180 days are not subject to the grounds of inadmissibility). ↑
    

    
    

14. 8 C.F.R. § 211.1(a). See also CBP, Reminder of Current Policy: Boarding of Lawful Permanent Residents (Mar. 5, 2021), AILA Doc. No. 21040934. The statute generally requires an immigrant to possess an immigrant visa. INA §§ 211(a); INA § 212(a)(7(A)(i)(I). But the statute also allows DHS to promulgate regulations allowing admission of a returning LPR who is a “special immigrant” without an immigrant visa (or reentry permit). INA § 211(b). A “special immigrant” is defined to include an “immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” INA § 212(a)(7)(A)(i)(I). Title 8 C.F.R. § 211.1(a) is promulgated pursuant to that statutory authority. ↑
    

    
    

15. 8 C.F.R. § 211.1(a)(2). ↑
    

    
    

16. 8 C.F.R. § 211.3 (emphasis added). ↑
    

    
    

17. 8 C.F.R. § 211.1(a). ↑
    

    
    

18. USCIS to Replace Sticker That Extends Validity of Greencards (Jan. 12, 2021), AILA Doc. No. 21011233. ↑
    

    
    

19. 8 C.F.R. § 211.1(b)(2). ↑
    

    
    

20. By statute, a reentry permit “has no effect under the immigration laws except to show that the [holder] is returning from a temporary visit abroad.” INA § 223(e) (added by the Immigration and Nationality Act of 1952, ch 477, Title II, Ch 3, § 223, 66 Stat. 194; Dec. 29, 1981, P.L. 97-116, § 6, 95 Stat. 1615). INS regulations issued in 1994 interpreting this statute make it plain that the holder of a reentry permit doesn’t benefit from a conclusive presumption that his or her trip abroad was temporary. Instead, the presumption is more limited: an LPR “shall not be deemed to have abandoned status based solely on the duration of an absence or absences while the permit is valid.” 8 C.F.R. § 223.3(d)(1) (emphasis added), added by 59 Fed. Reg. 1455 (Jan. 11, 1994); The regulation allows DHS to investigate the purpose of the foreign travel. see Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003) (“[A] reentry permit, in and of itself, does not prevent a finding that an alien has abandoned her permanent residency status.”). Still, according to most caselaw, a reentry permit holder benefits from a rebuttable presumption that the travel was temporary. Hamburg-American Line v. United States, 291 U.S. 420 (1934) (stating in dicta that the permit is “prima facie evidence” of the trip’s temporariness); Pascual v. Carroll, 1992 WL 232467 (4^th Cir. 1992) (unpublished opinion) (Issuance of reentry permit creates presumption that trip abroad was temporary); Zachrias v. McGrath, 105 F.Supp. 421 (D. D.C. 1952) (following Hamburg-American Line); Letter, Weinig, Field Manual Project Director, INS (Aug. 17, 1997), reprinted in 74 Interpreter Releases 1256, 1274-76 (Aug. 18, 1996) (acknowledging presumption that reentry permit holder retains LPR status). But see Matter of V, 4 I. & N. Dec. 143 (BIA 1950) (“[I]n the absence of fraud or misrepresentation, it is not proper for the immigration authorities to re-try the authorities to re-try the question of whether the alien has maintained a residence in the United States or his absence from the United States was temporary.”) ↑
    

    
    

21. Grubisich v. Esperdy, 175 F. Supp. 445 (S.D.N.Y. 1959) (Reentry permit holder inadmissible because of misrepresentation in the application for the permit). ↑
    

    
    

22. INA § 223(a). ↑
    

    
    

23. INA § 223(a). The application will be denied if USCIS determines that the proposed departure is not for a “temporary” visit. Matter of Thomopoulus, 15 I. & N. Dec. 466 (BIA 1975). ↑
    

    
    

24. 8 C.F.R. § 223.2(b)(1). ↑
    

    
    

25. USCIS Press Release, Update: Biometric Changes For Re-entry Permits and Refugee Travel Documents (Mar. 5, 2008). ↑
    

    
    

26. 8 C.F.R. § 223.2(d). ↑
    

    
    

27. 8 C.F.R. § 223.2(b)(1). ↑
    

    
    

28. 8 C.F.R. § 223.2(c)(2). ↑
    

    
    

29. INA § 101(a)(20) (“The term ‘lawfully admitted for permanent residence’ means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”) ↑
    

    
    

30. See generally, Gary Chodorow, Rights and Obligations of Lawful Permanent Residents (Aug. 30, 2012). ↑
    

    
    

31. INA § 101(a)(33). ↑
    

    
    

32. INA § 212(a)(7)(A)(i)(I) permits admission of a returning resident with a “reentry permit or other valid entry document.” The reentry permit and the other valid entry document, the SB-1 returning resident visa, are only valid for return to the U.S. after temporary trips abroad. INA § 223(a)(2); 22 C.F.R. 42.22. Technically, a Form I-551, Permanent Resident Card (i.e., green card) isn’t even a valid entry document, but the documentary requirement is waived for a returning resident after a “temporary absence of less than 1 year.” 8 C.F.R.§ 211.1(a); See INA §§ 101(a)(27)(A), 211(b). ↑
    

    
    

33. “If [an] officer erred or was deceived, the entrant may still be deported any subsequent time. Reconsideration of the previous administrative finding is not precluded by any principle of res judicata. Nor is the government estopped to question an improper entry or admission, in the absence of affirmative misconduct of its officers.” Charles Gordon, et al., Immigration Law and Procedure §71.04. ↑
    

    
    

34. Chavez-Ramirez v.I.N.S.,792 F.2d 932, 936-937 (9^th Cir. 1986) (internal footnotes omitted). ↑
    

    
    

35. Lateef v. Holder, 683 F.3d 275, 280 (6^th Cir. 2012); Karimjanaki v. Holder, 579 F.3d 710, 715 (6^th Cir. 2009); In re Duarte, 18 I. & N. Dec. 329, 332 n.3 (BIA 1982) (“Lawful permanent resident status may be … lost through abandonment, intentional or unintentional.”). ↑
    

    
    

36. Aleem v. Perryman, 114 F.3d 672, 677 (7^th Cir. 1977), citing United States ex. rel. Alther v. McCandless, 46 F.2d 288 (3d Cir. 1931). ↑
    

    
    

37. Angeles, v. District Director, INS, 729 F. Supp. 479, 484 (D. Md. 1990). ↑
    

    
    

38. Alvarez v. District Director, 539 F.2d 1220, 1225 (9^th Cir. 1976). ↑
    

    
    

39. Matter of Kane, 15 I. & N. Dec. 258 (BIA 1975). Interestingly, in 1991 INS proposed to amend the rules for determining whether a trip abroad is “temporary” for purposes of eligibility for a reentry permit. INS was concerned that the test for temporary involves a “broad discretionary review,” 56 Fed. Reg. 61201 (Dec. 2, 1991), and is too “abstract,” 59 Fed. Reg. 1455 (Jan. 11, 1994). Instead, INS wanted to focus on the “simpler” and “clear” issue of how long the LPR has been abroad. 59 Fed. Reg. 1455 (Jan. 11, 1994). INS therefore proposed a bright line rule that a permit may be denied only “where, since becoming a permanent resident, or during the last 5 years, whichever is less, the applicant has been outside the United States for a total of more than 4 years. An LPR not meeting this test would be denied a permit, although temporary travel with an I-551 would still be possible. 56 Fed. Reg. 61201 (Dec. 2, 1991). In the end, the only reason INS gave for not adopting this proposed rule was that some LPRs may not be able to get a passport or other travel document, in which case it would be unfair to not provide a reentry permit with which to travel abroad. 59 Fed. Reg. 1455 (Jan. 11, 1994). So, in some cases, it may be helpful to argue that an LPR who would qualify for a reentry permit under the INS proposed rule should be considered to have been abroad merely “temporarily.” ↑
    

    
    

40. Katebi v. Ashcroft, 396 F.3d 463, 466-467 (1^st Cir. 2005). ↑
    

    
    

41. Matter of Kane, 15 I. & N. Dec. at 262. ↑
    

    
    

42. Matter of Kane, 15 I. & N. Dec. at 262 (The traveler should normally have a definite reason for proceeding abroad temporarily…. [E]xamples are education and professional training, Serpico v. Trudell, supra.); Serpico v. Trudell, 46 F.2d 669 (D. Ver. 1928) (Boy was sent to Italy for schooling for 10 years–secondary through medical schools. Held, did not intend to remain abroad indefinitely or to practice his profession there, but intended to return to home kept for him by his parents). ↑
    

    
    

43. Gary Endelman, You Can Go Home Again—How to Prevent Abandonment of Lawful Permanent Resident Status, 91-04 Immigration Briefings 25 (April 1991), citing Matter of [name not provided], A13-179-451 (A.A.U. Jan. 29, 1988). ↑
    

    
    

44. 9 FAM N42.22 N1.2 (“Several decisions by the INS Administrative Appeals Unit (AAU) relate to LPR students studying abroad. Students who wish to retain LPR status should present evidence of a definitive graduation date. Even prolonged absences from the United States may be considered temporary if the LPR can present evidence of a receipt of a degree within a definitive time. Consular officers should take into account whether students return to the United States at the end of each academic term, or whether they have family still living in the United States. Evidence of property ownership, or a bank account in the United States may indicate the student intends to return to the United States upon completion of studies.”). ↑
    

    
    

45. Aleem v. Perryman, 114 F.3d 672 (7th Cir. 1997) (travel abroad not temporary because presence of a contract which was renewed several times already gives impression of indefinite employment abroad); Ahmed v. Ashcroft, 286 F.3d 611 (2d Cir. 2002) (eight-year employment with foreign government led to abandonment, despite claim that return to U.S. was contingent upon being rehired by former employer, since this was not likely to occur within a reasonably short period of time). ↑
    

    
    

46. Matter of Kane, 15 I. & N. Dec. 258, 262-263 (BIA 1975), citing Matter of Guiot, 14 I. & N. Dec. 393 (DD 1973) (A reentry permit may be issued to LPR seeking to teach at a university abroad for approximately two years.). See 9 FAM N42.22 N1.2 (Nov. 7, 2001) (predetermined employment contract expiration date abroad may evidence continued U.S. residence); Ezenwafor v. Ashcroft, 97 Fed. Appx. 29 (6^th Cir 2004) (unpublished opinion) (Original goal of starting a business subsidiary abroad with a timetable of six to eight months may be an event with a reasonable possibility of occurring over a short period.) ↑
    

    
    

47. Gary Endelman, You Can Go Home Again, 91-04 Immigration Briefings at 25, citing Matter of [name not provided], A36-887-150 (AAU Feb. 13, 1987). ↑
    

    
    

48. Matter of Huang, 19 I. & N. Dec. 749, 756 (BIA 1988) ↑
    

    
    

49. Aleem v. Perryman, 114 F.3d 672 (7th Cir. 1997). ↑
    

    
    

50. 15 I. & N. Dec. at 262-263; see also 9 FAM 41.22 N.3.3 (Nov. 15, 2002) (“In the absence of contrary evidence, an alien employed outside the United States by a U.S. employer would not likely be considered to have abandoned U.S. residence.”). ↑
    

    
    

51. Other facts considered by the district director were that he was divorced, that his 2 children lived in the U.S. with his sister, and that both children intended to become U.S. citizens. ↑
    

    
    

52. Other factors considered in the case were that he took the employment abroad about 1 year after he was granted LPR status, he filed U.S. tax returns, had U.S. bank and brokerage accounts, and had an LPR wife, a U.S. citizen child, and one child who was a beneficiary of a family-based immigrant visa petition. ↑
    

    
    

53. Legal Opinion of INS General Counsel, HQ 319-C (Feb. 23, 1993). ↑
    

    
    

54. See also Matter of Huang, supra, at 756 (finding a wife inadmissible due to her husband’s indefinite employment abroad, where her intent was to reside with him and his employment determined where they would live); Delaware v. Petrowsky, 250 F. 554 (2d Cir. 1918) (This case and similar cases hold that for purposes of establishing diversity of citizenship jurisdiction in federal court, a woman upon marriage acquires the residence of her husband. While this paternalistic view of women is outdated, the underlying principle still holds true that a husband and wife living together have the same residence.) ↑
    

    
    

55. Pascual v. Carroll, 976 F.2d 726, 6 (4th Cir. 1992) (Testimony that purpose of travel was to care for ill relative found not credible in the absence of medical records and evidence that no other relative available to care for relative). ↑
    

    
    

56. Idica v. Radcliffe, 15 F.3d 1085 (9th Cir. 1994). ↑
    

    
    

57. Id. ↑
    

    
    

58. Angeles v. District Director, I.N.S., 729 F. Supp. 479 (D. Md. 1990). ↑
    

    
    

59. Chavez-Ramirez v. I.N.S., 792 F.2d 932 (9th Cir. 1986) (Abandonment was, however, found on the basis that the LPR remained abroad for two more years after her sister took charge of the mother’s care, during which the LPR married and give birth to a child then sought a U.S. visitor’s visa.) ↑
    

    
    

60. Matter of [name withheld] (BIA July 8, 2009), AILA Infonet Doc. No. 09071563 (unpublished decision). ↑
    

    
    

61. Hana v. Gonzalez, 400 F.3d 472 (6th Cir. 1975). ↑
    

    
    

62. U.S. ex rel Lesto v. Day, 21 F.3d 307 (2d Cir. 1927). ↑
    

    
    

63. Khodagholian v. Ashcroft, 335 F.3d 1003 (9^th Cir. 2003). ↑
    

    
    

64. Fung v. Ashcroft, 113 Fed. Appx. 202 (9th Cir. 2004) (holding LPR’s travel with her son to Hong Kong to due to his unusual medical difficulties was a temporary trip and not indicative of intent to abandon status). ↑
    

    
    

65. Moin v. Ashcroft, 335 F.3d 415, 421 (5^th Cir. 2003). ↑
    

    
    

66. Id. at 420. ↑
    

    
    

67. Id. ↑
    

    
    

68. Id. ↑
    

    
    

69. 113 F.3d 1512, 1513-1515 (9^th Cir. 1997). The dissent opined that the law doesn’t require an LPR to “choose between shirking his family responsibilities by becoming a wholly absentee husband and father, and jeopardizing his status.” Id. at 1518. ↑
    

    
    

70. See INA § 101(a)(15)(B) (requiring a visitor to prove that her trip to the U.S. will be temporary and that she has no intent to abandon her foreign residence). ↑
    

    
    

71. Lateef v. Holder, 683 F.3d 275 (6^th Cir. 2012). ↑
    

    
    

72. 400 F.3d 472 (6^th Cir. 2005). ↑
    

    
    

73. Id. at 474. ↑
    

    
    

74. Id. ↑
    

    
    

75. Id. at 477. ↑
    

    
    

76. Matter of Zamora, 17 I. & N. Dec. 395, 396 (BIA 1980). See also Matter of Huang, 19 I. & N. Dec. 749, 749 n.1. ↑
    

    
    

77. Holder v. Martinez Gutierrez, 132 S.Ct. 2011, 2020 (2012); Matter of Zamora, 17 I. & N. Dec. 395, 396 (BIA 1980). See also Matter of Huang, 19 I. & N. Dec. 749, 749 n.1; Augustin v. Attorney General of the United States, 520 F.3d 264, 271 (3d Cir. 2008). ↑
    

    
    

78. Matter of Bauer, 10 I. & N. Dec. 304 (BIA 1963). ↑
    

    
    

79. Holder v. Martinez, 132 S.Ct. at 396, citing In re Ali, No. A44 143 723, 2006 WL 3088820 (BIA, Sept. 11, 2006). ↑
    

    
    

80. 9 FAM 502.7-2(B)(d). ↑
    

    
    

81. Valenzuela v. Holder, 540 Fe. Appx. 270 (5^th Cir. 2013) (not published). ↑
    

    
    

82. Matter of Kane, 15 I. & N. Dec. at 263, citing U.S. ex rel. Lesto v. Day, 21 F.2d 307, 309 (2d Cir. 1927) and Matter of Castro, 14 I. & N. Dec. 492 (BIA 1973). ↑
    

    
    

83. Chavez-Ramirez v. INS, 792 F.2d 932, 936 (9^th Cir. 1986) ↑
    

    
    

84. Haddad v. I.N.S., 69 Fed. Appx. 280, 282 (6^th Cir. 2003) (holding, among other factors, that arriving in the U.S. on a round trip ticket with return travel abroad was evidence of abandonment); INS Inspectors Field Manual § 13.1, at 2 (2007). ↑
    

    
    

85. Matter of Kane, 15 I. & N. Dec. at 263; In re Naturalization of Valfaei-Makhsoos, 597 F. Supp. 499 (D. Minn. 1984) (LPR in Iran during 1979 revolution in which Iran cut off all ties with US and forbade any Iranian from leaving Iran to return to the US, held by the Court to be an involuntary protraction of travel that did not result in abandonment of LPR status); Polymeris v. Trudell, 49 F.2d 730, 732 (C.A. 2, 1931) (the death and liquidation of the estate of a family member may be a valid reason for a prolonged trip). ↑
    

    
    

86. Khodagholian v. Ashcroft, 335 F.3d 1003, 1006 (9th Cir. 2003) (LPR made 15 month trip to Iran with original purpose of selling home there but while abroad foreign tax claim prohibited him from departing the country. Held: purpose in traveling to sell his home abroad was something that was likely to occur in a relatively short period of time and was an act inconsistent with intent to abandon LPR status). ↑
    

    
    

87. Katebi v. Ashcroft, 396 F.3d 463 (1^st Cir. 2005) (LPR a abandoned LPR status where he stayed in U.S. for three months after admission then lived in Canada with girlfriend for three years, securing housing, employment, and a bank account there, as well as becoming a Canadian citizen.). ↑
    

    
    

88. See 9 FAM 42.22 N1.2 (driver’s license may evidence U.S. residence). ↑
    

    
    

89. Sa Pereira v. I.N.S., 869 F.2d 1498 (9^th Cir. 1989) (LPR abandoned status where she relinquished her U.S. apartment, sold her car, and donated her furniture to charity). ↑
    

    
    

90. Matter of Huang, 19 I. & N. Dec. 749, 749 (B.I.A. 1988). ↑
    

    
    

91. Joseph v. Gonzales, 221 Fed. Appx. 63 (2d Cir. 2007) (Most of LPR’s family lived in the U.S., but the LPR himself admitted that he came to the U.S. for one week to visit them, so family ties were not a factor which showed intent to return permanently to the U.S.); Guan v. I.N.S., 232 F.2d 894 (9^th Cir. 2000) (LPR status abandoned because despite family ties in the U.S. her husband resided abroad with her.); Matter of Manion, 11 I. & N. Dec. 261, 261, 263 (B.I.A. 1965) (Individual who worked for a U.S. company abroad for over 6 years while minor children and sister remained in U.S. did not abandon LPR status); Matter of Kane, 15 I. & N. Dec. 258, 265 (BIA 1975) (relationship to prior spouse after divorce is not a strong family tie). ↑
    

    
    

92. Aleem v. Perryman, 114 F.3d 672, 674, 677 (7^th Ciur. 1997) (having two US born citizen children did not preclude a finding of abandonment in the face of overwhelming evidence). ↑
    

    
    

93. E.g., Lateef v. Holder, __ F.2d __, __ (6^th Cir. 2012) (finding petitioner had abandoned LPR status because, in part, during the 116 months from admission as an LPR to the time she was charged with abandonment, she spent 35% of her time in the U.S. and 65% abroad). ↑
    

    
    

94. Moin v. Ashcroft, 335 F.3d 415, 421, 422 (5^th Cir. 2003) (LPR who left U.S. two months after obtaining status and spent only six of the next 54 months in the U.S. had abandoned that status). ↑
    

    
    

95. 8 CFR 316.5(c)(2) (“An applicant [for naturalization] who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status… or fails to file either federal or state income tax returns… raises a rebuttable presumption that [he or she] has relinquished the privileges of permanent resident status in the United States”); 9 FAM 42.22 N1.3 (May 17, 2001). ↑
    

    
    

96. See Internal Revenue Service Publication 519, U.S. Tax Guide for Aliens. ↑
    

    
    

97. 8 C.F.R. § 316.5(c)(2). ↑
    

    
    

98. Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011). See Singh v. Reno, 113 F.3d 1152 (9^th Cir. 1997), citing Woodby v. INS, 385 U.S. 276, 277 (1966); Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988). ↑
    

    
    

99. Memo, David A. Martin, General Counsel, INS, The Effect of Filing Nonresident Income Tax Returns on an Alien’s Status as a Lawful Permanent Resident, HQ 70/11-P, 70/33-P (May 7, 1996), reprinted in 73 No. 27 Interpreter Releases 929, 948–50 (July 15, 1996); USCIS Policy Manual, vol. 12, part D, ch.3: “Continuous Residence.” See also Gary Endelman and Cyrus Mehta, Home Is Where the Card Is—How to Preserve Lawful Permanent Resident Status in a Global Economy, Immigration & Nationality Handbook 581 (2008-2009 ed.). ↑
    

    
    

100. The U.S. and China do have a tax treaty in effect. IRS, China—Tax Treaty Documents, http://www.irs.gov/Businesses/International-Businesses/China—Tax-Treaty-Documents (last visited July 28, 2014). ↑
     

     
     

101. IRS Form 2555 Instructions (2015):
     

     
     

     Whether you are a bona fide resident of a foreign country depends on your intention about the length and nature of your stay. Evidence of your intention may be your words and acts. If these conflict, your acts carry more weight than your words. Generally, if you go to a foreign country for a definite, temporary purpose and return to the United States after you accomplish it, you are not a bona fide resident of the foreign country. If accomplishing the purpose requires an extended, indefinite stay, and you make your home in the foreign country, you may be a bona fide resident.

     
     

     See also IRS Publication 54, Tax Guide for U.S. Citizens and Resident Aliens Abroad 14-15 (2015) (“Questions of bona fide residence are determined according to each individual case, taking into account factors such as your intention, the purpose of yor trip, and the nature and length of your stay abroad.”) ↑
     

     
     

102. Gary Endelman, The Enigma of Disruption: What Continuity of

     Residence in Naturalization Really Means (July 19, 2012), http://blog.fosterquan.com/2012/07/19/the-enigma-of-disruption-what-continuity-of-residence-in-naturalization-really-means/. ↑
     

103. Frieda Garcia, Brian O’Neill, and Clayton Cartwright, Jr., I Left My Home in San Francisco: Overseas LPR Issues, Immigration Practice Pointers (AILA 2013-14), citing Dawson v. Commissioner, 59 Tax Court 264, 268 (1972) (stating “bona fide residence is primarily a question of fact”) and Treasury Regulations §1.871-2(b) (describing the difference between a transient or sojourner and a resident). ↑
     

     
     

104. Former AFM 74.2(g)(9)(B). ↑
     

     
     

105. 9 FAM 42.22 N.10 (Jun. 28, 1996). ↑
     

     
     

106. Katebi v. Ashcroft, 396 F.3d 463 (1^st Cir. 2005) (LPR a abandoned LPR status where he stayed in U.S. for three months after admission then lived in Canada with girlfriend for three years, securing housing, employment, and a bank account there, as well as becoming a Canadian citizen.). ↑
     

     
     

107. Mateo Angeles v. District Director, I.N.S., 729 F. Supp. 479 (D. Md. 1990). ↑
     

     
     

108. USCIS, I-131A, Application for Travel Document (Carrier Documentation) (Sept. 8, 2020). ↑
     

     
     

109. Form I-131 Instructions at 1-2 (Feb. 13, 2019). ↑
     

     
     

110. USCIS, Form I-131A, Application for Travel Document (Carrier Documentation) (Feb. 14, 2020). ↑
     

     
     

111. 22 C.F.R. § 42.22(a); 9 FAM 502.7-2(B); DOS, Returning Resident Visas (last viewed Oct. 26, 2020). ↑
     

     
     

112. 22 C.F.R. § 42.22(a)(3). ↑
     

     
     

113. 9 FAM 502.7-2(B)(d) (Sept. 14, 2020). ↑
     

     
     

114. INA § 291. ↑
     

     
     

115. But see Paul W. Virtue, Acting General Counsel, INS, Legal Opinion (no date in original), available at 1 INS and DOJ Legal Opinions § 91-38 (a person imprisoned for their own criminal actions may not count as abroad for reasons beyond their own control). ↑
     

     
     

116. 9 FAM 502.7-2(B)(d). ↑
     

     
     

117. 9 FAM 502.7-2(B)(c). ↑
     

     
     

118. See INA §§ 316 and 317. ↑
     

     
     

119. 9 FAM 502.7-2(C). ↑
     

     
     

120. 9 FAM 502.7-2(C). ↑
     

     
     

121. 9 FAM 502.7-2(C). ↑
     

     
     

122. See Gary Chodorow, Grounds of Inadmissibility under U.S. Immigration Law (Dec. 224, 2019). ↑
     

     
     

123. 9 FAM 502.7-2(C). ↑
     

     
     

124. 22 C.F.R. § 42.22; 9 FAM 502.7-2(C). ↑
     

     
     

125. Inspector’s Field Manual § 13.5. (Note that the IFM is no longer in use by CBP and it is not clear whether its guidance to officers has changed). ↑
     

     
     

126. INA § 211(b). ↑
     

     
     

127. 8 C.F.R. §§ 211.1(b)(3), 211.4(a). ↑
     

     
     

128. 8 CFR § 103.7(b)(1)(i)(Q). ↑
     

     
     

129. Minutes, AILA-CBP Liaison Meeting (Nov. 21, 2014) at 16-17, AILA Doc. No. 15020541. ↑
     

     
     

130. 8 C.F.R. §§ 211.4(b). ↑
     

     
     

131. 8 C.F.R. § 235.3(b)(5)(ii). See 72 F.R. 10315 (The officer has only those three choices.). ↑
     

     
     

132. Id. ↑
     

     
     

133. Gary Endelman, You Can Go Home Again—How to Prevent Abandonment of Lawful Permanent Resident Status, 91-04 Immigration Briefings 28 (April 1991). See also Charles Gordon, et al., Immigration Law and Procedure §63.12 n.22 (discussing related precedent). ↑
     

     
     

134. 22 C.F.R. § 42.22(a)(3). ↑
     

     
     

135. Matter of Kane, 15 I. & N. Dec. at 263. ↑
     

     
     

136. INA § 212. ↑
     

     
     

137. Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011). ↑
     

     
     

138. INA § 237(a). ↑
     

     
     

139. Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011). ↑
     

     
     

140. CBP, Preclearance (last visited Jan. 11, 2021). ↑
     

     
     

141. CBP, Immigration Advisory Program (May 2013). ↑
     

     
     

142. Lisa Seghetti, Congressional Research Service, Border Security: Immigration Inspections at Ports of Entry at 10 n.45 (2015). ↑
     

     
     

143. CBP, Privacy Impact Assessment Update for the Advance Passenger Information System (APIS), DHS/CBP/PIA-001(g) 1 (June 5, 2015). ↑
     

     
     

144. CBP, Carrier Information Guide: United States Document Requirements for Travel 28 (Feb. 2019). ↑
     

     
     

145. AILA, Practice Pointer: Admissions Issues for LPRs Who Were Unable to Timely Return Due to COVID-19 (Mar. 19, 2021), AILA Doc. No. 21031943. Travelers (and their attorneys) cannot communicate directly with the RCLG. ↑
     

     
     

146. See Singh v. Reno, 113 F.3d 1512, 1517 (9^th Cir. 1997) (Reinhardt, J., dissenting) (claim on customs form not to be a resident of the U.S. may be relevant to whether abandonment has taken place). ↑
     

     
     

147. 8 C.F.R. § 292.5(b) (An applicant for admission in either primary or secondary inspection has no right to representation, unless the applicant for admission has become the focus of a criminal investigation and has been taken into custody.) ↑
     

     
     

148. INA § 101(a)(13)(C). ↑
     

     
     

149. The statute does not expressly require the person to have bee “convicted” of an offense. But DHS must prove the crime was “committed” by clear and convincing evidence. Evidence that the individual has been “charged” with the crime is not enough. Lau v. Bondi, 130 F.4^th 42 (2d Cir. 2025). But see Matter of Valenzuela-Felix, 26 I. & N. Dec. 53, 57 (B.I.A. 2012); Munoz v. Holder, 755 F.3d 366, 370-71 (5^th Cir. 2014) (deferring to BIA’s interpretation of the INA as allowing the government to exercise its discretion to parole a returning LPR into the United States for prosecution before satisfying its burden of proof that the person was an arriving alien); Vazquez Romero v. Garland, 999 F.3d 656, 664 (9th Cir. 2021). ↑
     

     
     

150. Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011). ↑
     

     
     

151. Matter of Pena, 26 I. & N. Dec. 613 (BIA 2015) (holding that the grounds of inadmissibility do not apply to an LPR returning to the U.S. where the sole charge was that he acquired his LPR status unlawfully, which is not one of the above six exceptions). ↑
     

     
     

152. See Matter of Huang, 19 I. & N. Dec. 749 (BIA 1988). ↑
     

     
     

153. An person whose grant of LPR status is verified by DHS is not subject to expedited removal. 8 C.F.R. § 235.3(b)(5)(ii). ↑
     

     
     

154. 8 C.F.R. § 235.3(b)(5(ii) ↑
     

     
     

155. 8 C.F.R. 1235.2(b). See Unofficial Notes of AILA DC Chapter CBP Liaison and Baltimore CBP Representatives Meeting, Oct. 11, 2011. ↑
     

     
     

156. See 8 C.F.R. § 292.5(b) ↑
     

     
     

157. Inspector’s Field Manual § 17.10(b). ↑
     

     
     

158. CBP, Can I Stay in United States if I Have Abandoned My Permanent Resident Status? (Sept. 30, 2020). ↑
     

     
     

159. But see Matter of Wood, Case No. A24 653 925 (BIA Jan. 13, 1992), reported in 69 No. 16 Interpreter Releases 512-14 (Apr. 27, 1992) (notwithstanding surrender of card and statement, respondent did not intend to abandon LPR status). ↑
     

     
     

160. Jill A. Apa & Sophie I. Fea, Not Just a Matter of Time: The Concept of Abandonment of Permanent Residency under Immigration and Nationality Law, 12-10 Bender’s Immigration Bulletin 5 (May 15, 2007). ↑
     

     
     

161. INA § 235(a)(4). ↑
     

     
     

162. 8 C.F.R. § 235.3(b)(5)(ii). ↑
     

     
     

163. See INA § 212(a)(7)(A)(i)(I) (ground of inadmissibility for immigrant lacking valid entry document); INA § 101(a)(13)(C) (LPR isn’t regarded as seeking admission to the U.S. unless, inter alia, he or she has abandoned LPR status or been absent from the U.S. for a continuous period in excess of 180 days); ↑
     

     
     

164. INA § 235(b)(2)(A). ↑
     

     
     

165. 8 C.F.R. § 212.5(b). ↑
     

     
     

166. 8 C.F.R. § 212.5(d). ↑
     

     
     

167. DHS’s position is that this differs from parole under INA § 212(d)(5)(A). Coldebella, OGC, DHS, Clarification of the Relation Between Release under Section 236 and Parole under Section 212(d)(5) of the INA (Sept. 28, 2007), AILA Doc. No. 07121790. The BIA agrees. Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010) (person released from custody under conditional parole not paroled under INA §212(d)(5) for purposes of AOS). Cf. settlement in Rabelo v. Mayorkas, No. 21-cv-23213-BB (S.D. Fla. Feb. 23, 2022), AILA Doc. No. 22022351 (recognizing that Cuban arriving aliens issued conditional paroles can AOS because post-Jennings parole under 212(d)(5) is the only basis for parole). ↑
     

     
     

168. 8 C.F.R. §§ 236.1(c)(11)(i), 1003.19(h)(2)(i)(B). ↑
     

     
     

169. Matter of Oseiwusu, 22 I. & N. Dec. 19 (BIA 1998). ↑
     

     
     

170. INA § 236(c). ↑
     

     
     

171. DHS’s position is that this differs from parole under INA § 212(d)(5)(A). Coldebella, OGC, DHS, Clarification of the Relation Between Release under Section 236 and Parole under Section 212(d)(5) of the INA (Sept. 28, 2007), AILA Doc. No. 07121790. The BIA agrees. Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010) (person released from custody under conditional parole not paroled under INA §212(d)(5) for purposes of AOS). Cf. settlement in Rabelo v. Mayorkas, No. 21-cv-23213-BB (S.D. Fla. Feb. 23, 2022), AILA Doc. No. 22022351 (recognizing that Cuban arriving aliens issued conditional paroles can AOS because post-Jennings parole under 212(d)(5) is the only basis for parole). ↑
     

     
     

172. 8 C.F.R. § 1003.19. ↑
     

     
     

173. INA § 239. An LPR is not subject to expedited removal proceedings. 8 C.F.R. § 235.3(b)(5)(ii). ↑
     

     
     

174. See Unofficial Notes of AILA DC Chapter CBP Liaison and Baltimore CBP Representatives Meeting, Oct. 11, 2011. ↑
     

     
     

175. 8 C.F.R. § 1003.20 (Immigration Judge may grant motion for change of venue if good cause exists.); Matter of Rahman, 20 I. & N. Dec. 480 (BIA 1992) (good cause is determined by balancing the relevant factors, including administrative convenience, expeditious treatment of the case, location of witnesses, cost of transporting witnesses or evidence to a new location, and factors commonly associated with the alien’s place of residence.). ↑
     

     
     

176. Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011). See Singh v. Reno, 113 F.3d 1152 (9^th Cir. 1997), citing Woodby v. INS, 385 U.S. 276, 277 (1966); Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988). See also Landon v. Plasencia, 459 U.S. 21 (1982) (returning resident should be accorded due process in exclusion proceedings). See generally Gary Endelman and Cyrus D. Mehta, Home is Where the Card Is: How to Preserve Lawful Permanent Resident Status in a Global Economy, in Immigration and Nationality Handbook 2008-2009, 581, 584-85 (discussing how the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 impacts the burden of proof). ↑
     

     
     

177. INA § 101(a)(20); 8 C.F.R. § 1.2 (defining “lawfully admitted for permanent residence”). ↑
     

     
     

178. 8 C.F.R. § 1.2 (defining “lawfully admitted for permanent residence”). ↑
     

     
     

179. 8 C.F.R. § 264.5(g); 11 USCIS-PM B.2(B). See Huiwu Lai v. United States, 2018 WL 3455498 (W.D. Wash. 2018) (Upon seeking to return to U.S. from Canada, plaintiff was detained by CBP. CBP confiscated his green card and paroled him into the U.S., initiating removal proceedings. Held: This was a violation of the Immigration and Nationality Act and the Fifth Amendment due process clause of the U.S. Constitution. An LPR may not be deprived of their right to work in the U.S. and travel outside the U.S. unless there is a final removal order. Until then, he has a write to his green card. See also Etuk v. Slattery, 936 F.2d 1433, 1447 (2d Cir. 1991) (“LPRs who are placed in deportation proceedings do not lose the status of lawful residents and its attendant benefits until a deportation hearing has been conducted, see 8 U.S.C. § 1252(b), and a final deportation order issued…. To revoke a LPR’s green card pending completion of the deportation process would severely undermine the integrity of the process itself and impose significant hardship on the alien involved. While the INS’s authority to monitor aliens is extremely broad, the agency cannot completely interfere with a LPR’s ability to earn a living and provide for himself or family during the pendency of deportation proceedings, absent a decision to hold that individual in custody.”) ↑
     

     
     

180. ICE Enforcement and Removal Operations, Confiscation and Return of Original Documents (Policy No. 11311) (Jan. 13, 2023), superseding Memorandum from John P. Torres, Acting Director, ICE Office of Detention and Removal Operations, Subject Confiscation and Return of Original Documents (July 14, 2006). Under the Torres memo, upon initiation of removal proceedings, the green card was to be confiscated, but if the individual was released from detention prior to the conclusion of removal proceedings, ICE should issue them a temporary I-551 card. ↑
     

     
     

181. Matter of Brown, 18 I. & N. Dec. 324 (BIA 1982) (may continue application for 212(c) relief). See Matter of Sanchez-Herbert, 26 I. & N. Dec. 43 (BIA 2012) (It’s not proper to terminate proceedings on the basis that respondent departs the U.S.). See also Loa-Herrera v. Trominski, 231 F.3d 984 (5th Cir. 2000). ↑
     

     
     

182. AILA, Practice Alert: Update to Travel Warning (Feb. 14, 2025), AILA Doc. No. 25012807. ↑
     

     
     

183. 8 C.F.R. § 1208.2. ↑
     

     
     

184. 8 C.F.R. § 245.1(b)(3) (With certain exceptions, any alien who was not admitted or paroled following inspection is ineligible for adjustment of status.) ↑
     

     
     

185. Cruz-Miguel v. Holder, 650 F.3d 189, 193 (2d Cir. 2011); Delgado-Sobalvarro v. Attorney General of U.S., 625 F.3d 782, 786 (3d Cir. 2010). ↑
     

     
     

186. See Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992) (A respondent who is deportable but not inadmissible may, if otherwise eligible, apply to the immigration court for adjustment of status.) ↑