IMMIGRATION GUIDE (18)
A lawful permanent resident (LPR) or green card holder arrived a few weeks ago from the Philippines after staying there continuously for almost five years. He is in his mid 80's. While it is not uncommon for LPRs to stay abroad for more than a year, 5 years is rather unusual. Under immigration regulations, if an LPR returns to the U.S. after a temporary absence of less than one year, the LPR must present a valid and unexpired green card (Form I-551) to immigration authorities at the port of entry. 8 CFR Sec. 211.1(a)(2). If an LPR intends to remain outside the U.S. for a year or more, he should obtain a Reentry Permit, using Form I-131, Application for Travel Document. The reentry permit allows the LPR to apply for admission to the U.S. upon return from abroad during the permit's validity (two years from the date of its issuance), without having to obtain a returning resident visa from a U.S. embassy or consulate. If an LPR remains outside the U.S. for a year or more without a reentry permit, the LPR is presumed to have abandoned his U.S. residency. What happens if such an overstaying LPR returns to the U.S.? In the case of the elderly LPR, he was asked during the primary inspection how long he stayed abroad. When he answered that it was almost 5 years, he was placed in secondary inspection. An immigration officer told him that the officer would take his statement under oath. The alien agreed. The alien did not ask for an interpreter, even though he did not speak English well. He could not understand what the officer was asking because in addition to the fact that he did not know enough English, he was almost deaf. Neither did he ask for an opportunity to call a lawyer. Whether an arriving alien may be represented by a lawyer during a secondary inspection is not certain. It depends on the immigration authorities at the airport and the timeliness of the alien's request. Some lawyers have been allowed to represent aliens at the airport. QUESTIONS The following questions were asked of the alien. They are typical of what is asked of an arriving alien with a green card who is placed in secondary inspection.
CHOICES The officer told the alien: You appear to have abandoned your lawful permanent resident status. The officer gave the LPR a choice of:
ALIEN'S CHOICE The alien replied: I want to give up my green card. The officer asked the alien if he understood that he had a right to a hearing before an immigration judge if he wanted to retain his lawful permanent resident status. The alien replied: Yes The officer told the alien that once he gave up his lawful permanent resident status, he will need a U.S. visa to visit the U.S. The alien acknowledged that he understood it. The alien was asked to read Form I-831, Record of Sworn Statement in Administrative Proceedings, indicating the date of the alien's arrival and the date it was taken, and the alien's A number. He was asked to sign it, which he did. ABANDONMENT OF LAWFUL PERMANENT RESIDENT STATUS The alien was given Form I-407, Abandonment of Lawful Permanent Resident Status. The most significant Item is Line 6a which reads: "I voluntarily, willingly and affirmatively [ ] am abandoning [ ] have abandoned my status as lawful permanent resident of the United States because: The alien placed an X on the first box and then wrote: I cannot come back to the United States because I am getting old. I want to live in the Philippines. The alien was asked to sign the form which he did. His green card was then taken from him. WAIVER OF PASSPORT OR VISA The alien could have been sent back to the port of origin on the next available plane. Why? Because he was inadmissible to the U.S. under Sec. 212(a)(7)(B)(i) of the Immigration and Nationality Act, since he no longer had a valid green card to entitle him to enter the U.S. and he was not in possession of a valid nonimmigrant visa. However, this ground for inadmissibility may be waived by immigration authorities under INA Section 212(d)(4). The alien was given Form I-193, Application for Waiver of Passport and/or Visa. He filled up and signed the form. The immigration officer gave him a visa as a visitor for pleasure and allowed him to enter and remain in the U.S. for six months. WHAT NOW? The alien now wants to remain in the U.S. and regain his lawful permanent resident status. He claims that he did not understand what was going on and that he never intended to give up his green card. LESSON TO BE LEARNED FROM THIS STORY An LPR should not remain outside the U.S. for a year or more if he wants to retain his LPR status. If he remains outside the U.S. for a year or more without a reentry permit, and then returns, he risks being held and investigated at the port of entry and his green card confiscated. He could be placed on the next plane back to his port of origin. A lenient immigration officer might admit him briefly. The alien could ask that he be given a hearing before an immigration judge. An LPR who stays outside the U.S. for a year or more without a reentry permit should consult an excellent lawyer before returning to the U.S. If he is already at the airport, he might tell the immigration authorities that he wishes to speak with a lawyer first before being questioned. There is no certainty that they will grant his wish. RELIEF AVAILABLE Can an alien who returns to the U.S, after remaining abroad for more than a year without a reentry permit become a permanent resident again? It depends on the circumstances. In the case of the LPR who arrived recently, yes. However, his family is still considering whether to seek relief. A family member indicated that they have spent a lot already for his trip to the U.S. They seem hesitant to spend more - a few thousand for filing fees and attorney's fees. Susmariosep. Does not the Bible command you to "Honor thy father and thy mother?" Are you honoring your father by your reluctance to spend for him, thereby consigning him back to the Philippines and probably separating him from your mother who is entitled to live in the U.S. and wants to live here? If not for your father, would you have seen the light of day? If I were a family member, I would shout: "Help my father. Damn the expense!" (Atty. Tipon is from Laoag City. He holds a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from U.P. He practices law and writes law books. Office: 905 Umi St., Suite 201, Honolulu, HI 96819. Tel. (808) 847-1601. E-mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. Listen to our program on KNDI Honolulu radio 1270 AM on your radio dial every Friday morning between 6:30-8:00, sponsored by Citizen's Mortgage Co. This article is for general information only and is not intended as legal advice. It may not be cited as a precedent or authority. It does not create an attorney-client relationship.) |