A Question Of “Abandonment Of LPR Status” As Demonstrated Through             Your Actions While Abroad INA § 101(a)(13)(C...
where he went abroad (back “home”) for just under six (6) months, left his U.S.job, gave up his apartment, and took his wh...
(v) has committed an offense identified in section 212(a)(2), unless since such                 offense the alien has been...
director erred when he weighed whether the applicants absences were meaningful and      significant.”2 (This involved prov...
Rivens presented a different issue than that last forum/blog example give up abovewhich described completely different cir...
Matter of B-, 9 I&N Dec. 211 (BIA 1961) A commuter with a border crossingcard went abroad and stayed abroad a rather long ...
States until after the last extension (seven had been obtained) from                the Canadian authorities had expired (...
ultimately remains a complex case-by-case determination based on the highlyindividualized facts of each case.Matter of Sch...
Matter of Salviejo, 13 I&N Dec. 557 (BIA 1970) This person lived for a time inGuam but was not deemed entitled to a presum...
the visa became available for him, he had a business, a wife and five (5) children athome abroad plus a son in school in t...
(2) Notwithstanding he possesses the requisite familial relationship, the alien in      the instant case is ineligible for...
(2) Application for a reentry permit is denied in the instant case since applicants      departure from the United States ...
Matter of Favela, 16 I&N Dec. 753 (BIA 1979) Favela was taken back to hisnative Mexico as a small child by his parents aft...
(3) The denial of a visa petition because of petitioners failure to meet his burden of      proof that he was a lawful per...
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A question of LPR abandonment 12-17-2012

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This topic is still in a state of flux and probably will remain that way.

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A question of LPR abandonment 12-17-2012

  1. 1. A Question Of “Abandonment Of LPR Status” As Demonstrated Through Your Actions While Abroad INA § 101(a)(13)(C)(i)I have noticed a growing number of concerned LPRs (lawful permanent residents)floating questions around the various immigration blogs and forums related to thistopic. Folks are worrying needlessly on the one hand and overlooking the obviouson the other. There is a great deal of confusion across the board. Often, folks startasking about this issue when seeking naturalization and by then (if it is an issue) itis usually too late to cure. Sometimes I see people describing their situation and itmakes me cry, cringe, smirk, roll my eyes, or simply laugh out loud.For instance, I saw one person describe how he touched base in the U.S. to obtainLPR status and then departed again to “return home” in order to finish school. Inthat case, he meant graduate high school and then attend a four-year collegeprogram and then graduate school. The problem was that he waited until he wasgraduating from college before even thinking about his lawful permanent residentstatus. It was too late.Another poster described how she and her mother had relocated back to theirnative country and overstayed their reentry permits. At first she figured it was ahopeless cause to try to return to the U.S. Her situation was not as bleak as shethought. She and mom had relocated back for financial reasons because her brotherhad been deployed to Afghanistan in the U.S. military (an LPR when deployed butthen naturalized) and they were dependent on his income for support. He wascoming home and they wanted to return to the U.S. and pick up where they left off.They were discouraged by some not-too-bright “friends” to even try to get“returning resident” (SB-1) visas from the Consulate. They thought that they’dhave to re-immigrate by having him file new I-130s as a USC petitioner. Theywere turned around when they finally got proper advice and easily got their SB-1visas in next to no time.Then there are those who go abroad for much shorter periods of time but do somevery meaningfully disruptive things which may be dispositive of the outcome oftheir case. Some of these circumstances are discussed below in the various I&NDecisions spanning many years. A more recent forum poster described a situationBy Joseph P. Whalen (January 17, 2012) Page 1
  2. 2. where he went abroad (back “home”) for just under six (6) months, left his U.S.job, gave up his apartment, and took his whole immediate family back where hegot a job for a foreign employer. When that job ended he managed to find a U.S.job and now that he has only just returned he’s talking about filing fornaturalization. The issue of having “abandoned LPR status” through his actionsabroad never crossed his mind until he saw that he would need to include thisdetailed information on his N-400.Anyone interested in this issue needs to start with the statute and then keep diggingfor more information. The following is at least a place to start that search. Firstthings first, see INA §§ 101(a) (13)(C)(i) and (20).INA § 101 Definitions(a) As used in this Act- ***** (13) (A) The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. (B) An alien who is paroled under section 212(d)(5) or permitted to land temporarily as an alien crewman shall not be considered to have been admitted. (C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien- (i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,By Joseph P. Whalen (January 17, 2012) Page 2
  3. 3. (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer. ***** (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.Matter of John, 17 I&N Dec. 534 (Reg’l Comm’r 1980)1 is one of several keycases about reentry permits and abandonment, unfortunately, that case dealt with aMissionary covered by a special provision so it is inapplicable to the vast majority.Certain other specific situations may yet arise and be matters of first impression,if and when, they ever get to any appellate authority in any context. MorePrecedent Decisions are listed below (with links) but first, in addition to thoseofficial decisions posted on the BIA website, there are also USCIS’ non-precedentAdministrative Decisions by their Administrative Appeals Office (AAO).Here is a notable discussion from the AAO in a non-precedent decision of 2009: “Both the director and counsel erred by applying the so-called "Fleuti doctrine" to evaluate whether the applicants departures were interruptive of his physical presence in the United States. As noted above, the field office director and counsel relied on a 1963 Supreme Court decision, Rosenberg v. Fleuti, 374 U.S. at 449, in addressing whether the applicants numerous trips abroad were "meaningfully interruptive" or "significant." The AAO notes that the Fleuti decision, and the doctrine of "brief, casual, and innocent" departures, was nullified by the enactment of section 301(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009- 546, 3009-575 ("IIRIRA"). The Fleuti doctrine, with its origins in the no longer existent statutory definition of "entry," did not survive as a judicial doctrine beyond the enactment of IIRIRA. Matter of Collado, 21 I&N Dec. 1061, 1065 (BIA 1998). Accordingly, the1 http://www.justice.gov/eoir/vll/intdec/vol17/2828.pdfBy Joseph P. Whalen (January 17, 2012) Page 3
  4. 4. director erred when he weighed whether the applicants absences were meaningful and significant.”2 (This involved proving a continuous period inside the U.S. for INA 316(b)).Matter of Collado, 21 I&N Dec. 1061 (BIA 1998) held: (1) A lawful permanent resident of the United States described in sections 101(a)(13)(C)(i)-(vi) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1101(a)(13)(C)(i)-(vi)) is to be regarded as “seeking an admission into the United States for purposes of the immigration laws,” without further inquiry into the nature and circumstances of a departure from and return to this country. (2) The Immigration Judge erred in finding that the Fleuti doctrine, first enunciated by the United States Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963), requires the admission into the United States of a returning lawful permanent resident alien who falls within the definition of section 101(a)(13)(C)(v) of the Act, if that alien’s departure from the United States was “brief, casual, and innocent.”http://www.justice.gov/eoir/vll/intdec/vol21/3333.pdfThis next BIA case is the most recent on this topic as of this writing in January2012. Rivens reinforces and applies Collado. It addresses a direct application ofthat principle and the effect of a crime in the context of INA § 101(a)(13(C)(v).Did the crime fall under an applicable provision of INA § 212(a)(2) to be includedin INA § 101(a)(13(C)(v) and if so, was there a waiver available, and if so, did hequalify for it, and is so, was it already granted or could it be granted now? Colladowas remanded for that purpose and involved additional fact-finding and legalanalysis with conclusions by the IJ in the first instance. Did that crime qualify?Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) held: (1) In order to establish that a returning lawful permanent resident alien is to be treated as an applicant for admission to the United States, the Department of Homeland Security has the burden of proving by clear and convincing evidence that one of the six exceptions to the general rule for lawful permanent residents set forth at section 101(a)(13)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C) (2006), applies. (2) The offense of accessory after the fact is a crime involving moral turpitude, but only if the underlying offense is such a crime.http://www.justice.gov/eoir/vll/intdec/vol25/3731.pdf2 An N-470 Decision at: http://www.uscis.gov/err/E1%20-%20Application%20to%20Preserve%20Residence%20for%20Naturalization/Decisions_Issued_in_2009/Feb022009_01E1316.pdfBy Joseph P. Whalen (January 17, 2012) Page 4
  5. 5. Rivens presented a different issue than that last forum/blog example give up abovewhich described completely different circumstances (working abroad, cutting ties,and bringing immediate family abroad) which is potentially one where anoverzealous DHS/USCIS Officer could make a case that would delaynaturalization while an applicant fights it out. It is also possible that it might cometo light that the LPR made misrepresentation to the CBP Officer upon entry orcould have been honest and been implicitly granted a discretionary waiver underINA § 211(b) and allowed back in. Some CBP Officers might give a verbalwarning and others may make an annotation in the passport or in a re-entry permit.CBP Officers are empowered to make such decisions and not a great deal of timeto make them. What’s the old joke among inspectors? “We admit our mistakes.”DHS bears the burden of proving by clear and convincing evidence that a returninglawful permanent resident is to be regarded as seeking an admission which is themain point of citing Rivens here. The legal landscape has changed as to theunderlying statutes which has precipitated new and further reinterpretations ofolder case-law that had been well known and readily applied.There are just a few earlier cases cited in the Indices but the EOIR website startswith volume eight (8). These are what is available for research and discussion:Matter of G-, 8 I&N Dec. 249 (BIA 1959) INS allowed an excludable returningresident seeking “entry” to concurrently apply for an available waiver. That wasnot even somewhat novel in 1959, because the very first I&N decision (Matter ofL-, 1 I&N Dec. 1 (A.G. 1940)3) allowed for nunc pro tunc approval of a waiver.Low and behold. seventy-one (71) years later, the most recent immigration-relatedU.S. Supreme Court case of December 12, 2011, Judulang v. Holder, No. 10-694which overturned the BIA’s “comparable ground” rule relating to the availabilityfor relief under former INA § 212(c), actually cites to Matter of L-. (The case wasremanded to the Ninth Circuit.)http://www.justice.gov/eoir/vll/intdec/vol08/Pg249.pdf3 Matter of L- is not on the EOIR website but is found on USCIS’ website at:http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=intBy Joseph P. Whalen (January 17, 2012) Page 5
  6. 6. Matter of B-, 9 I&N Dec. 211 (BIA 1961) A commuter with a border crossingcard went abroad and stayed abroad a rather long time and after that he returned heracked up another CIMT conviction. The pertinent issue to this discussion issomewhat peripheral in the quoted decision. In addition, that decision dealt with anolder version of the law, however, the discussion is pertinent and relevant. For thesake of addressing this issue, the BIA treated him as if he were an LPR. “A "returning resident" is entitled to enter the United States without a visa under certain circumstances (section 211 (b) , Immigration and Nationality Act, 8 U.S.C. 1181(b); 8 CFR 211.2(c) (1), 8 CFR 211.2 (c) (2), 8 CFR 211.2 (c) (6) (regulations in effect at time of last entry) ) . The respondent would have been entitled to reenter the United States as a "returning resident" (1) if he had been originally lawfully admitted for permanent residence, (2) if he had that status when he departed, (3) if he departed from the United States with the intention of returning, (4) if he had not abandoned this intention, and (5) if he returned from a temporary visit abroad (United States ex rel. Alther· v. McCandless, 46 F.2d 288 (C.A. 3, 1931; Sercerchi v. Ward, 27 F. Supp. 437 (D.C. Mass., 1939)).” At p. 213 ***** “Also pertinent to the question of whether the respondent abandoned whatever status he may have had in the United States is the fact that a federal indictment had been handed down against him on September 4, 1952 (the respondent denied having any knowledge of this until after his return to the United States in 19l:Sl:S), the fact that the respondent was joined by his "wife" in Canada several months after he went there and she stayed with him except for the time she went to visit her people, and the fact that the respondent alleges that when he went to Canada he left some of his clothes in the United States and took some with him. He had no bank account in the United States. The respondent is a person of poor credibility. He has given us conflicting versions of the same incidents. Under the circumstances, we do not find it improper to believe the; version of his Canadian experiences given to the Canadian officials-a version given at a time contemporaneous with the events in question, one made under oath and while he was represented by attorney, and one subject to verification on the spot. The Canadian version reveals that he came to Canada to see what it was like and with the intention of staying if he liked it; that he did not leave Canada after he entered in 1952; that he bought a business there and made his living in Canada, and as late as April 7, 1955, did not know whether he intended to return to the United States. (We note that he did not return to the UnitedBy Joseph P. Whalen (January 17, 2012) Page 6
  7. 7. States until after the last extension (seven had been obtained) from the Canadian authorities had expired (Exh. 4, release on bond form).) This testimony is quite consistent with the facts that the respondent had been unable to find a livelihood in the United States after searching and that he was under indictment in the United States. This testimony establishes that the respondent cannot meet the test of "returning resident" found in United States ex rel. Alther v. McCandless, supra. At the best, he merely planned "to let future events determine his course." The respondent was not, therefore, returning from a temporary visit, and he was required to be in possession of an immigrant visa to reenter the United States (sections 211(a) and 212(a) (20), Immigration and Nationality Act; 8 U.S.C. 1181(a) and 1182(a) (20) ). (We have not utilized statements by the respondents sister (Exh. 5) (or others) which corroborate the respondents testimony in the Canadian deportation hearing, although we believe it proper to utilize these affidavits.)” At pp. 215-216 [Emphasis/Bold added.]http://www.justice.gov/eoir/vll/intdec/vol09/1126.pdfMatter of Bauer, 10 I&N Dec. 304 (BIA 1963) held: (1) Respondent, a lawful permanent resident of the United States, who in 1956 when he was 16 departed with his mother and stepfather to Germany where the latter was assigned to a tour of military duty and in 1959 when he was 19 returned to the U.S. with his parents, again under military orders of his stepfather, did not upon his return make an entry within the meaning of section 101(a) (13) of the Immigration and Nationality, since he was an unemancipated minor under the legal compulsion to follow and accompany his parents and his departure to and presence in a foreign place was not voluntary nor intended by him. (2) Therefore, respondents return to the United States in 1959 does not constitute an entry on which to predicate a ground of deportation under section 241(a) (4) of the Act on the basis of his conviction on March 25, 1960, of a crime involving moral turpitude.http://www.justice.gov/eoir/vll/intdec/vol10/1291.pdfBauer was later overruled by Matter of Zamora BUT the Ninth Circuit recentlyreviewed the concept in Portillo-Escobar v. Holder, No. 07-71998 (9th Cir. June 8,2011)4 and upheld it THEN shortly after that came Khoshfahm v. Holder, No. 10-71066 (August 25, 2011 )5 which went the opposite way. The question as to justhow much at the mercy of the parents’ actions a child is held accountable4 http://www.ca9.uscourts.gov/datastore/memoranda/2011/07/25/07-71998.pdf5 http://www.ca9.uscourts.gov/datastore/opinions/2011/08/25/10-71066.pdfBy Joseph P. Whalen (January 17, 2012) Page 7
  8. 8. ultimately remains a complex case-by-case determination based on the highlyindividualized facts of each case.Matter of Schonfeld, 10 I&N Dec. 669 (Acting Reg’l Comm’r 1964) These folks(a mother and son) never actually established a residence in the U.S. and keptapplying for re-entry permits and repeated extensions. A District Director finallysaid enough is enough. The INS Acting Regional Commissioner agreed with that.Current regulations mirror this approach to limits on re-entry permits (REPs).http://www.justice.gov/eoir/vll/intdec/vol10/1376.pdfMatter of Manion, 11 I&N Dec. 261 (DD 1965) Manion is specificallydistinguished from Schonfeld. Good cause was found for extended absences thatallowed for continuing to issue multiple successive reentry permits.http://www.justice.gov/eoir/vll/intdec/vol11/1491.pdfMatter of Morcos, 11 I&N Dec. 740 (BIA 1966) This guy obtained a newimmigrant visa but he had to conceal material facts in order to get it. (1) Notwithstanding that respondents voluntary removal from the United · States In 1938 pursuant to section 28 of the Immigration Act of February 5, 1917, as amended, terminated, as a matter of law, his status as a lawful permanent resident, his abandonment of permanent residence is established, as a matter of fact, since following removal he married, was employed, and lived abroad with his wife and child; he made no effort to return to the U.S. until 1944; and his removal request made in 1938 because he had fallen in need of public aid and thought he would be better off to go home belies his presently advanced self-serving claim that he could not intend to abandon his residence in 1938; therefore, he was ineligible for the nonquota immigrant visa as a returning resident which he acquired deliberately withholding from the consul information concerning his removal and with which he gained entry in 1965, and he is deportable under section 241(a) (1) of the Immigration and Nationality Act because he was excludable at entry under section 211(a) (3) of the Act. (2) Permission to reapply is not warranted as a matter of discretion where respondent has been absent from the United States for 27 years after removal at government expense pursuant to his request; when seeking the visa with which he last gained entry he, deliberately withheld essential information from the consular officer; his wife and child reside abroad, and there appears no reason why he cannot return to the same employment abroad he had prior to entry (he has same employer here).http://www.justice.gov/eoir/vll/intdec/vol11/1624.pdfBy Joseph P. Whalen (January 17, 2012) Page 8
  9. 9. Matter of Salviejo, 13 I&N Dec. 557 (BIA 1970) This person lived for a time inGuam but was not deemed entitled to a presumption of lawful permanent residencedue to the nature of his contract employment. He was a non-immigrant temporaryworker as a matter of fact. After a long absence of a decade back in his nativePhilippines where he acquired a farm and let life go on, he could not be considereda resident merely returning from a temporary absence abroad. If he actually hadLPR status he would have been considered as having abandoned it.http://www.justice.gov/eoir/vll/intdec/vol13/2042.pdfMatter of Wu, 14 I&N Dec. 290 (Reg’l Comm’r 1973) held: Despite applicants relatively short stays in the United States, denial of his application for a reentry permit under section 223, Immigration and Nationality Act, on the ground that his absence abroad was not temporary was incorrect where he has maintained ties in this country, his absences were in connection with his employment abroad for an American firm, and an application under section 316(b) of the Act to preserve continuity of his residence for naturalization purposes while employed abroad by such firm had previously been approved. Hence, he never lost his lawful permanent resident status and was entitled to admission as such upon application on October 28, 1972, with a nunc pro tunc waiver of the returning resident visa requirement pursuant to section 211(b) of the Act.http://www.justice.gov/eoir/vll/intdec/vol14/2186.pdfMatter of Souqi, 14 I&N Dec. 390 (Reg’l Comm’r 1973) held: Notwithstanding applicants recent admission to the United States for permanent residence, application for issuance of a reentry permit is granted for the purpose of returning abroad for approximately two years to dispose of his business and home and to arrange to bring his immediate family to the United States for permanent residence. [Matter of Schonfeld, 10 I. & N. Dec. 699, distinguished.]In Souqi, the District Director in Detroit certified a recommended denial but theRegional Commissioner reversed and approved the issuance of the reentry permit.The Reg’l Comm’r determined that it was quite proper to allow a new immigrantto go back and wind up affairs. At that time, immigrant visas were issued fasteronce the visa became available but only allowed four months to liquidate holdingsin order to prepare for the permanent move. Mr. Souqi had been petitioned by hisbrother so there was quite a wait for the visa to actually become available. WhenBy Joseph P. Whalen (January 17, 2012) Page 9
  10. 10. the visa became available for him, he had a business, a wife and five (5) children athome abroad plus a son in school in the U.S. Mr. Souqi’s foreign holdings weresubstantial and he planned to liquidate property and shift that wealth and theremainder of his immediate family to the United States. He was rightfully grantedthe two-year period that he truly needed to make all the necessary arrangements.http://www.justice.gov/eoir/vll/intdec/vol14/2213.pdfMatter of Guiot, 14 I&N Dec. 393 (DD 1973) In this case, the reentry was initiallydenied then reversed and remanded to the DD. The DD clarified the INS positionon the difference between the statutory definitions of “residence” and “lawfullyadmitted for permanent residence” having consulted other Service Offices andspelling it out so that they could all be on the same page on this issue.http://www.justice.gov/eoir/vll/intdec/vol14/2214.pdfMatter of Montero, 14 I&N Dec. 399 (BIA 1973) held: (1) An alien abandoned her lawful permanent residence upon her departure from the United States during March 1963 when she returned to her husband, children, home, business and financial resources in the Dominican Republic since she had no fixed intention to return to the United States within a period fixed by an early event. (2) An aliens voluntary statement of renunciation of United States residence given to an immigrant inspector in a non-custodial setting was not invalid for lack of due process because of failure to give Miranda notice as to right to counsel.http://www.justice.gov/eoir/vll/intdec/vol14/2216.pdfMatter of Castro, 14 I&N Dec. 492 (BIA 1973) held: (1) An alien admitted for permanent residence who departed to Mexico in May 1963; who severed his ties with the United States, moved his family to Mexico, acquired land, built a house, and obtained steady employment in Mexico, where he remained for six years, except for his numerous brief business trips to the United States, was not, upon his return to the United States in 1969, "returning from a temporary visit abroad" within the meaning of section 101(a)(27)(B) of the Immigration and Nationality Act and was not entitled to admission as a returning resident through presentation of his Alien Registration Receipt Card (Form I-151).By Joseph P. Whalen (January 17, 2012) Page 10
  11. 11. (2) Notwithstanding he possesses the requisite familial relationship, the alien in the instant case is ineligible for the benefits of section 24l(f) of the Act, as amended, since he was required to be in possession of an immigrant visa at the time of his return to the United States from Mexico in 1969 and, therefore, was not "otherwise admissible" (Matter of Lee, 13 I. & N. Dee. 214, 218 (1969)).* * Reversed and remanded. See Castro-Guerrero v. Immigration and Naturalization Service, 503 F.2d 964 (C.A. 5, 1974). Affirmed, 515 F.2d 615 (C.A. 5, 1975).Castro had relocated back home to Mexico and was using his green-card like aborder crossing card or in place of a “B” non-immigrant visa. His green-card waslifted and he was ordered deported by the IJ. The BIA upheld the loss of LPRstatus determination but granted voluntary departure instead of deportation (whichseemed to be overkill and heavy-handed treatment that could have made it next toimpossible to get the proper B non-immigrant visa).http://www.justice.gov/eoir/vll/intdec/vol14/2245.pdfMatter of Kane, 15 I&N Dec. 258 (BIA 1975) held: The applicant for admission in this case had been admitted for permanent residence with an immigrant visa in 1964. Since 1967, however, she has spent 11 months of each year living in her native country of Jamaica in an-8 room house which she operates as ,a lodging house Each year she comes to the United States for one month which she spends in a furnished room which she rents by the week. Applicant presented herself for admission as a special immigrant under section 10l(a)(27)(B) [now (A)] of the Immigration and Nationality Act and was found excludable under section 212(a)(20) of the Act, for lack of a valid immigrant visa. Looking at the purpose of her departure, the duration of her absence, her home, family and employment ties, it was concluded that she had abandoned her permanent residence in the United States and was therefore excludable on the ground alleged. (Saxbe v. Bustos, 419 U.S. 65, related to "commuters" returning to employment. in the United States and can be distinguished from one who has no ties of residence or employment here.)http://www.justice.gov/eoir/vll/intdec/vol15/2371.pdfMatter of Thomopoulous, 15 I&N Dec. 466 (Acting Reg’l Comm’r 1975) held: (1) In determining whether an applicant for a reentry permit under section 228 of the Immigration and Nationality Act intends to depart temporarily from the United States, the following factors serve as a reliable indication of intent: the duration of the applicants absence; the motive for departure; the location of applicants job, family ties, and property holdings; and the date of the intended return.By Joseph P. Whalen (January 17, 2012) Page 11
  12. 12. (2) Application for a reentry permit is denied in the instant case since applicants departure from the United States is not deemed to be for the purpose of making a temporary visit abroad but rather for the purpose of returning to his domicile in Greece. At the time of his departure, applicant left nothing in the United States and was returning to his family, his farm, and to a job he was holding in Greece in addition to his farming responsibilities.http://www.justice.gov/eoir/vll/intdec/vol15/2435.pdfMatter of Davis, 16 I&N Dec. 514 (BIA 1978) Davis was born in the U.S. butrenounced his citizenship to become a “citizen of the world”. He was excludedwhen attempting to reenter the U.S. He was found to have renounced claims to“nationality” as well as “citizenship” when he renounced allegiance and loyalty tothe United States. A highly politicized case of a kook.http://www.justice.gov/eoir/vll/intdec/vol16/2650.pdfMatter of Muller, 16 I&N Dec. 637 (BIA 1978) held: (1) The factors bearing on a determination whether the applicant is returning from a temporary visit abroad include the duration of the aliens absence from the United States, the location of the aliens family ties, property holdings, and job, and the intention of the alien with respect to both the location of his actual home and the anticipated length of his excursion. (2) Abandonment of lawful permanent resident status held established where aliens absence from the United States spanned the period from 1968 to 1974 and was coupled with the establishment of a home with his Mexican wife and three Mexican children. (3) Section 212(a)(22) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(22), providing for the exclusion of aliens who have departed from or remained outside of the United States to avoid or evade training or service in the armed forces during a period of war or national emergency, applies to alien who departed from the United State after his induction or enlistment whose primary purpose for departing or remaining outside of the country was to avoid military service. (4) Alien who deserted from the armed forces of the United States is not within the terms of President Carters Proclamation No. 4483 relating to the pardon of persons who had committed certain violations of the Military Selective Service Act. Matter of Rahman, Interim Decision 2665 (BIA 1978) distinguished.http://www.justice.gov/eoir/vll/intdec/vol16/2680.pdfBy Joseph P. Whalen (January 17, 2012) Page 12
  13. 13. Matter of Favela, 16 I&N Dec. 753 (BIA 1979) Favela was taken back to hisnative Mexico as a small child by his parents after less than two years as an LPR.He had no claim to LPR status because his parents’ abandonment was imputed tohim. As such he had no LPR status as a basis to seek any waiver to avoid exclusiondue to his conviction for drug smuggling and he could not avoid these immigrationconsequences due to “youth” (he was 20 at the time) but his crime involving drugsmuggling/trafficking was not covered.http://www.justice.gov/eoir/vll/intdec/vol16/2707.pdfMatter of Zamora, 17 I&N Dec. 395 (BIA 1980) held: (1) The voluntary and intended abandonment of lawful permanent resident status by the parent of a minor child who departs the United States in the custody and control of such parent will be imputed to the child, who will also be deemed to have abandoned his lawful permanent resident status. (2) To the extent that Matter of Bauer, 10 I&N Dec. 304 (BIA 1963), holds that a minor alien can escape the consequences of an "entry" upon returning to the United States after a long absence simply because he had departed under the custody and control of his parents, it is overruled. Valenti v. Karnuth, 1 F. Supp. 370 (N.D.N.Y. 1932) and Rosenberg v. Fleuti, 374 U.S. 449 (1968), distinguished. (3) Under rule that the intent of a parent is imputed to a minor child subject to the parents custody and control, a lawful permanent resident child who accompanied his mother to Mexico in 1970 when she abandoned her residence, and who continued to live in Mexico thereafter, lost his permanent resident status.http://www.justice.gov/eoir/vll/intdec/vol17/2796.pdfMatter of Abdoulin, 17 I&N Dec. 458 (BIA 1980) held: (1) Where a visa petitioner left the United States for 11 years following his admission as a lawful permanent resident and then reentered thrice as a nonimmigrant visitor, he fails his burden of establishing lawful permanent residence so as to confer preference status to his spouse and his petition was properly denied even though no adjudication against him in deportation proceedings had been made. Matter of Umale,16 I&N Dec. 682 (BIA 1979) and Matter of Abdelhadi, 15 I&N Dec. 383 (BIA 1975) distinguished. (2) Unlike an exclusion or deportation proceeding, a denial of a waiver of a visa under section 211(b) of the Immigration and Nationality Act, 8 U.S.C.1181(b) by a District Director does not constitute a definitive adjudication of abandonment of lawful permanent resident status. By Joseph P. Whalen (January 17, 2012) Page 13
  14. 14. (3) The denial of a visa petition because of petitioners failure to meet his burden of proof that he was a lawful permanent resident, while not an adjudication of petitioners personal status like a deportation proceeding, is a proper adjudication of his ability to confer benefits to another alien.http://www.justice.gov/eoir/vll/intdec/vol17/2813.pdfMatter of Huang, 19 I&N Dec. 749 (BIA 1988) held: (1) Where an applicant for admission to the United States has a colorable claim to returning resident status, the burden is on the Immigration and Naturalization Service to show by clear, unequivocal, and convincing evidence that the applicant should be deprived of his or her lawful permanent resident status. (2) An alien acquires lawful permanent resident status at ·the time of his initial admission to the United States as a lawful permanent resident, as at that point he attains "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," and is thus an alien "lawfully admitted for permanent residence" pursuant to section 10l(a)(20) of the Act, 8 U.S.C. § 110l(a)(20) (1982). (3) For purposes of determining whether the applicant has abandoned her lawful permanent resident status, an applicants absence from the United States due to her husbands having a contract to work and study at a Japanese university cannot be said to be a temporary visit abroad fixed by some early event, where the record does not show a clear demarcation as to when her husbands relationship with the university would end.http://www.justice.gov/eoir/vll/intdec/vol19/3079.pdfOf course these cases are not the end-all and be-all on this topic nor is this listingcomplete to date but it’s a place to start the discussion.By Joseph P. Whalen (January 17, 2012) Page 14

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