Several other abandonment cases that may determine whether a Legal Permanent Resident (LPR) has abandoned their LPR status include the following:
Loss of Citizenship
A naturalized citizen who loses his/her US citizenship doesn’t automatically lose their LPR status. In the Matter of Vielma-Ortiz, 11 I&N Dec. 414 (BIA 1965) [PDF version].
Leaving the US to avoid service in the military
If a foreigner leaves the US to avoid military service or training, in a time of war or a national emergency period (as declared by the President of the United States), that alien will be considered to have abandoned their LPR status. In the Matter of Muller, 16 I&N Dec. 637 (BIA 1978).
Can you be found to have abandoned your LPR status even though you don’t have an immigration proceeding for abandonment?
The answer to that question is yes according to a D.C. Circuit Court of Appeals decision. In U.S. v. Yakou, 428 F.3d 241 (D.C. Cir. 2005) [PDF version]. This case involved a criminal prosecution. The appellate court found that the defendant could lose his LPR status, even though he was never charged in an immigration proceeding. The ruling held that the abandonment happens when the foreigner “engages in an abandoning act.”
The Burden of Proof in Abandonment Cases
The Sixth Circuit Court of Appeals held, in Ward v. Holder, 733 F.3d 601 (6th Cir. 2013) [PDF version], health that the government has the burden of proving an alien abandoned his or her LPR status by “clear, unequivocal, and convincing evidence, “ when the LPR has an otherwise valid LPR claim. This burden of proof requirement is based on the US Supreme Court decision in Woodby v. INS, 385 U.S. 276 (1966) [PDF version]. In Woodby v INS, the Supreme Court established the standard for deporting an LPR.
Another court decision by the Sixth Circuit Court of Appeals, Hana v. Gonzales, 400 F.3d 472 (6th Cir. 2005), ruled that the decision whether to rule a Legal Permanent Resident abandoned his/her claim must be decided based on the totality of the circumstances
Abandonment of Permanent Residency
An experienced immigration lawyer will explain to an LPR that he/she needs to understand that he/she must have a continuous intent to maintain their residency in the US when they travel to a foreign country. An LPR who travels to a foreign country may be considered to have abandoned their LPR for many difference including staying abroad for more than one year without a suitable explanation for why the LPR needed to stay outside the US – such as an unexpected illness of the LPR or of a family member.
An experienced immigration lawyer will explain when and how they may lose their LPR status due to abandonment. The attorney will also explain when and how the LPR can seek a returning resident visa (SB-1) based on extended stays that are beyond the control of the LPR.
For help obtaining a returning resident visa, call Herman Legal Group at 1 (800) 808-4013 or complete our contact form to speak with us