Episode 15: Legal Analysis of Challenges to Claims of Abandonment of Lawful Permanent Resident Status

Click Here Listen and to Subscribe on Itunes

Click Here to Subscribe Via RSS Feed (Non-Itunes) 

Stream by clicking here

Download as an MP3 by right-clicking here and choosing “save as.”

Send your Feedback/Comments/Opinions to Info@jqklaw.com

Legal Analysis of “Abandonment” of Lawful Permanent Residency Through Case Law and History

Hi everyone. I decided to do this episode of the Immigration Lawyers Podcast as a legal review of an issue that a lot of my clients ask about, and actually came up a few years ago. Aspects of the issues and laws that I’ll be talking today about probably come up at least once a week for any professional immigration practice, especially for those that have clients that frequently travel outside of the U.S. and potentially spend a large part of their lives as lawful permanent residents residing or employed outside of the U.S. That issue is abandonment of Lawful Permanent Status.

I’ll be going over the history of the law in this area based on court cases spanning decades, to see how it is interpreted now. It will help practitioners analyze where their client’s potential abandonment case lies compares to precedent. Along the way interesting tidbits of related information will also be provided.

If you enjoy this episode, please like it and subscribe on youtube, facebook or itunes. And leave a comment or email me to discuss.

For every lawful permanent resident, the issue of losing their green card is a scary one. Different types of issues can cause inadmissibility leading to the loss of a Green Card, such as health, public charge, criminal and moral issues. But for those that don’t have these types of problems, a claim of “abandonment” can also lead them to lose their green card.

To start, let’s do an overview of the issue of losing one’s green card for abandonment: essentially now with an absence from the U.S. for more than 180 days, one initiates the risk of being accused of abandonment. Moreover, multiple exits from the US for such a period of time (or for more than a year) will increase that chance. Almost always an absence of 1-year will bring this issue up.

Many believe that reentering the U.S. every 5 and a half months and then leaving again will save them from a claim of abandonment. But a CBP Officer can still find these shorts stays in the U.S. as illegitimate and accuse the Resident of abandonment.

A person can challenge such a claim, at the time of reentry, by providing legitimate reason (with or without documentation) of their absence such as caring for a sick family member, temporary employment abroad, partaking in a study abroad program, or closing business dealing outside of the country. CBP officers have full authority to ask and search as they like at the port of entry.

If the CBP Officer thinks abandonment has occurred they may ask the resident to sign Form I-407, Record of Abandonment of Lawful Permanent Resident Status. This is not mandatory and an immigrant can and should resist and challenge this accusation and request a hearing on the claim of abandonment in removal proceedings. CBP doesn’t have the authority to take a person’s residency status away from them.

The best way to avoid this issue, if extended periods abroad are necessary, is for the client to obtain a Travel Document known as a Reentry Permit. Moreover, having strong ties to the U.S., through relatives, home, work, investments, paying taxes, school, and other ties can help.

Another option for a person that has had extended periods abroad is to apply for an SB-1 Returning Resident Visa from an Embassy or Consulate Abroad before reentering the U.S. I prefer avoiding this option since a denial of it would not look good, and the decisions of consular officers are unpredictable. 

Also note that some foreign airports now have CBP stations, that can prevent even boarding the plane and entering the U.S Another note is that these absences can also be an issue at the time of naturalization.

In my case that I spoke about earlier, the client had been abroad for 3 years consecutively, the first two in college. Surprisingly, at the time of reentry into the US, the CBP Officers permitted reentry without a fuss. The issue arose during renewal of the I-551 with form I-90. The USCIS stated that abandonment had occurred and found the client was out of status and their Green Card invalid, telling the client to leave the country. As I will discuss based on case law, the Service’s decision and statement claiming the client did not have valid lawful permanent residency was not in jurisdictional power to do so. The legitimate method of taking away LPR status was to refer the client to Immigration Proceedings before an Immigration Judge.

Some notes on terminology: What we now refer to as inadmissibility and removal, used to be called exclusion and deportation. Moreover, the agency name of USCIS used to be INS. Finally, the legal term of an Arriving Alien used to be referred to as an Alien attempting Entry.

How is abandonment judged and what are the standards with which it can challenged?

Some Legal history

One of the early cases that established the old methodology for judging abandonment was Rosenberg v. Fleuti, 374 U.S. 449 (1963). That case was before the U.S. Supreme Court. There, the LPR tried to reenter the U.S. after an afternoon trip across the border. At the border, the officer said that because of the person’s unlawful activities, they were not a “returning immigrant” as lawful permanent residents usually are after a trip abroad, and was considered to be coming back to the U.S. as an “Entry” which has lesser legal protections. I think the equivalent of “Entry” today is requesting “Admission,” a request an LPR does not normally have to make.

Astonishingly, the unlawful activity accused was that the LPR was a homosexual which was then considered a quasi-crime and moral turpitude issue. This criminal claim was successfully challenged in court, but brought up the debate of the kind of travel abroad that can raise the issue of abandonment.

The Court in this case established the Fleuti Doctrine and the “intent exception” referring to the LPR’s intent to depart in a “manner which can be regarded as meaningfully interruptive of the alien's permanent residence.” Thus, an “innocent, casual, and brief excursion” by a resident alien outside this country's borders would not subject him to the consequences of an “entry” on his return. If, however, “the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful.” That distinction both protects resident aliens from “unsuspected risks and unintended consequences of ... a wholly innocent action.”

When thinking about abandonment, the most important piece of information you have to know is the standard of review for these cases. Based on the Supreme Court case of Woodby v. INS 385 U.S. 276 (1966): Losing LPR status is a drastic depravation to an immigrant so the same standard used in denaturalization cases is required: No deportation order may be entered unless the Government, who has the burden, proves by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.

In Saxbe v. Bustos, 95 S.Ct. 272 (1974) an interesting nuance was established regarding those LPRs that live abroad, in particular LPRs who live (and even have home residences) in Mexico and Canada and commute to work in the United States. The Supreme Court affirmed Alien commuters are immigrants who are ‘lawfully admitted for permanent residence,’ and are ‘returning from a temporary visit abroad’ when they enter the United States, and this ‘special immigrant’ classification is applicable to both daily and seasonal commuters. They said that this has long been the administrative construction of the statute in the context of alien commuters. This includes those LPRs that are ‘returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding 1 year.’ even if their home is abroad and the do not intend to reside permanently in the U.S.!

Later in MATTER OF KANE 15 I. & N. Dec. 258 (BIA) (1975) An applicant for admission had been admitted for permanent residence with an immigrant visa in 1964, but since 1967, spent 11 months of each year living in her native country of Jamaica in an 8 room home which she operated as a lodging house. Each year she would return to the United States for one month and stay in a rented furnished room. Looking at the totality of the case, such as 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. This was not a commuter case like Saxbe. The BIA did not regard home residence abroad as necessarily determinative, although was obviously a useful aid in ascertaining whether the alien is returning from a temporary absence abroad and may be scrutinized for that purpose. It analyzed the facts as such:

(1) Purpose for Departing. The traveler should normally have a definite reason for proceeding abroad temporarily. Examples are education and professional training, employment for a definite, “albeit extended period,” such as by accepting a two-year teaching position with a foreign university, indefinite employment abroad when assigned by one's United States employer, liquidation of assets, etc.

(2) Termination Date. The visit abroad should be expected to terminate “within a period relatively short, fixed by some early event.” If unforeseen circumstances cause an unavoidable delay in returning, the trip would retain its temporary character, so long as the alien continued to intend to return as soon as his original purpose was completed. For example, war might inhibit travel or the alien might be drafted, there might be illness, there might be a death requiring remaining abroad to settle an estate.

(3) Place of Employment or Actual Home. The traveler must intend to return to the United States as a place of employment or business, or as an actual home. They must possess the requisite intention to return at the time of departure from the U.S., and must maintain it during the course of the visit. Moreover note the significance of the location of the alien's ties, such as family, job or property, as an aid in determining the alien's intent.

The above factors are obviously interrelated one with another. The more limited the temporary purpose of the trip abroad, the shorter the trip, and the stronger the ties in the United States, the more likelihood that permanent residence status has not been abandoned. The variance in these factors is well illustrated by the case of Serpico v. Trudell, 46 F.2d 669 (1928). There a boy was sent to Italy for schooling, and remained out of the United States for ten years attending secondary through medical schools. The Court noted that he did not intend to remain abroad indefinitely or to practice his profession there, but intended to return to his home in this country as soon as he completed his professional training; that he was returning to a home which had been kept for him by his father and mother, during all the time he was away.

An important exception to the limitations of USCIS in enforcing abandonment came up in Matter of Abdoulin 17 I. & N. Dec. 458 (BIA) (1980). There 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 failed to prove his burden of establishing lawful permanent residence so as to confer preference status to his spouse and his petition was properly denied by the service even though no adjudication against him in deportation proceedings had been made. 

Here, the immigrant had left the US for an extended period of time and then married and petitioned for his wife. The District Director denied the visa petition and found that petitioner was not a permanent resident of the United States and that he was not returning from a temporary visit abroad. He concluded that the petitioner had not carried his burden of proof in conferring benefits under section 203(a)(2) of the Act, because he had not established that he was a permanent resident of the United States pursuant to section 101(a)(20) of the Act, 8 U.S.C. 1101(a)(20). The issue, then, is whether or not a visa petition can be denied on the ground that the petitioner has not established that he is entitled to permanent resident status, even though no adjudication of this status has occurred in deportation or exclusion proceedings.

In visa petition proceedings, the burden is always on the alien to show that he is entitled to confer benefits. Matter of Brantigan, 11 I & N. Dec. 493 (BIA 1966). However, in removal proceedings, the burden is on the Government to show by clear, convincing, and unequivocal evidence that the alien is deportable. Thus the USCIS Officer could not take away residency status, but could prevent the Petitioner from trying to confer benefits to others based on that status.

The updated standard for abandonment was further analyzed in Chavez-Ramirez v. INS, 792 F.2d 932 (9th Cir. 1986) In that case, Zenaida Calderon de Chavez was brought to the United States sometime during 1966 or 1967 as a nun, acquiring lawful permanent resident status 1968. During 1973, Chavez learned that her mother had been hospitalized and was seriously ill. No other members of Chavez's family were able to assist or provide the financial assistance to meet her mother's mounting medical needs. Consequently, Chavez requested early vacation from the Church Order so that she could care for her mother in Mexico. The Order granted Chavez a three-month leave of absence. Chavez's mother was released from the hospital, but she failed to recuperate fully. Chavez worked in a school kitchen during the day to earn the money required to meet her mother's medical expenses, while a neighbor cared for Chavez's mother. Chavez cared for her mother at night. After three months, her mother's health had not improved, and Chavez was forced to request an additional three-month leave of absence from the Order. The Order granted the request. After the additional three-month leave had expired, Chavez's mother was still incapable of caring for herself. Chavez's request for additional time from the Order was denied, and she was forced to resign and stay in Mexico. Two more years passed during which time Chavez continued to care for her mother. In January, 1976, Chavez's sister became estranged from her husband and came to live with her mother. She assumed Chavez's role in her mother's care. Shortly after her sister's return, Chavez married and gave birth to her first child. Chavez testified that she always intended to return to the United States, but that she and her husband could not afford to return until they actually did so in 1978 (after 4 years of absence). Chavez stated that she and her husband remained in Mexico after their marriage so that they might defray additional medical expenses incurred by Chavez's mother and so that they could accumulate enough money to live on while they sought employment upon returning to the United States. At no time before mid-1978, however, did Chavez ever inquire about her permanent resident status. Further, when she visited the American Consulate in 1978, she applied for a visitor's visa although she testified that she presented her green card at that time as well.

The BIA found that Chavez had abandoned her permanent resident status. It understood that an alien might not immediately take up residence in the United States for economic reasons, but could not conclude under the totality of the circumstances of this case, that an affirmative intent to move to the United States permanently at such time as her financial and familial situation permitted. The Board noted in this regard that [Chavez] took no steps whatsoever to inquire about or to preserve her status as a lawful permanent resident subsequent to her resignation from her Order. The Board also noted that it considered Chavez's lack of property holdings, family ties, or employment in the United States as affirmative indications that Chavez harbored no intent to return to the United States. These factors coupled with the Board's conclusion that Chavez's stay in Mexico was not fixed by some early event led the Board to conclude that her visit could not be considered a “temporary visit abroad” for the purposes of 8 U.S.C. § 1101(a)(27)(A).

On appeal, the 9th circuit said that the BIA correctly noted that Chavez's visit to Mexico was not fixed by some early event. Chavez intended to remain with her mother until she had recuperated to the point that she could provide for her own care and maintenance. The visit's duration was not fixed by a date relatively close to Chavez's date of departure nor was it fixed by an event certain to occur within a period relatively short. Chavez's visit, however, was scheduled to terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time.  Moreover, the two and one-half years Chavez remained in Mexico after her sister began to care for her mother and after Chavez had married indicated that Chavez did not harbor a continuous, uninterrupted intention to return. The 9th Circuit said that “while this is certainly a close case, we find that these facts provide the substantial evidence required to support the BIA's conclusion [of abandonment].”

In Matter of Huang 19 I. & N. Dec. 749 (BIA), Interim Decision 3079, 1988 WL 235431 (1988), It was found that absence from the U.S. due to a husband's contract to work and study at a Japanese university could not 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 husband's relationship with the university would end. The husband, after receiving his Green Card, returned to Japan to continue studying and working at a university's medical school as a medical doctor in the field of neurosurgery with a contract for a period of 5 years. His wife and two children remained in Los Angeles, California, for approximately 3 to 4 weeks at the home of her husband's sister, a United States citizen. Thereafter, she and the children returned to Japan. The wife and her two children last sought to reenter the U.S. (four years later) at which time they were placed in exclusion proceedings. In a sworn statement dated that same day, the applicant reported that she intended for her children to go to school in the United States and to live in this country forever, while she planned to return to Japan in 2 months.

The wife testified that that she and her two children had returned to the United States every year since 1982 for 3 or 4 weeks in March or April in order to maintain her lawful permanent resident status, staying with her husband's sister. The children attended school in the U.S. for very brief periods of time. The husband had not returned to the United States since 1982 and had never worked in the United States.

The BIA acknowledged the Applicant’s ties to the US, including the sister-in-law, investment property, payment of taxes and bank account. However, they never maintained a home or life in the U.S., except for brief visits. In addition to extended absences, living and working in Japan for many years, lead to the conclusion that their status changed and that their absences were not temporary in nature, and that they are therefore not entitled to admission to the United States as returning permanent residents.

One important thing to note from the line of cases from Huang and after is that a Parent’s abandonment will be imputed to children. See Matter of Zamora, 17 I&N Dec. 395 (BIA 1980).

Another pivotal case was Singh v. Reno 113 F.3d 1512 (9th cir. 1997). Alien, an Indian Citizen, challenged finding that he abandoned permanent resident status based upon his extended time abroad and his minimal contacts in United States. He originally had obtained LPR status by being a special agricultural worker in Dec. 1990. But from that date till 1993, only spent less than one-third of his time in the U.S. Upon arrival from trip to Great Britain, he was put in proceedings as an alien not in possession of a valid immigrant status.

The court said that Singh's trips abroad, sometimes eight or nine months in consecutive duration, could not be described as “relatively short.” If the alien's trip abroad is not “relatively short,” it is a “temporary visit abroad” only if the alien has “a continuous, uninterrupted intention to return to the United States during the entirety of his visit.”  The relevant intent is not the intent to return ultimately, but the intent to return to the United States within a relatively short period. 

In this case: his wife and daughter who reside abroad—were the proffered reasons for his extensive absences from this country. The court said that although the LPR had pending visa applications for them, they were free to visit the U.S. (Despite the court’s claim, personally I have seen difficulties for some cases in obtaining non-immigrant visas when a Petition is pending.)

The court found that Singh's decision to spend most of his time abroad is evidence of his lack of ties to the United States. Nor did Singh's employment history provide any evidence of an intent to reside permanently in the United States. Although Singh attained his permanent resident status as a special agricultural worker, he quickly changed careers. Singh worked at a restaurant in Carmel, California, but his long absences from the country were such that his employment history was sporadic. When working at the restaurant, Singh lived in housing provided by his employer. He never established his own residence in the United States during his entire time as a permanent legal resident.

Singh listed an address in England as his permanent address on his replacement Indian passport, issued less than two months after attaining permanent resident status in the United States. One month later, Singh applied for and received a visitor's visa at the U.S. consulate in London. In his consular interview for that visa, Singh did not raise the issue about his permanent residence status. Singh used that visa to enter the U.S. four times, even though a permanent resident does not require such a visa. On Singh's last visit to the United States, he checked “NO” when asked if he resided permanently in this country, checked “PLEASURE” for the purpose of his visit, and wrote that he expected to stay 3 weeks. As such the majority confirmed the abandonment.

However, the dissent in this case challenged this assertion by saying that Singh had a well-intentioned, and temporary absence—in this case, spending time abroad with his wife and young child while waiting for the INS to grant the visa petition allowing them to join him here. The dissent further stated that contrary to the majority's assertion, no prior case even remotely suggests, let alone compels, this result. It is undisputed that Singh lawfully obtained permanent resident status in this country, worked and invested large sums of money in this country, spent a substantial and ever-increasing amount of time in this country, and filed an immigrant visa petition so that his family could join him in this country.  Singh's daughter was only an infant at the start of the period in question—she was born in 1990, the year that Singh lawfully obtained permanent resident status—and his wife was in poor health following childbirth. The majority correctly acknowledges that the determinative question in this proceeding is that of Singh's intent. It does not dispute that Singh was awaiting “the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time,” namely, the approval of the immigrant visa petition that he had filed on behalf of his wife and daughter.

For practitioners, note this can happen to F2A spouses that petitioner for and are waiting for their alien spouse to become current before getting the consular interview and being allowed to permanently resettling in the U.S. Advise clients in similar situation that absence of 180 days (especially if multiple such absences) can lead to an abandonment claim.

In Alaka v. Elwood, 17 I. & N. Dec. 458 (BIA 2002), On August 8, 2001, Alaka returned to the United States after spending eight months in Nigeria. She applied for admission into the country as a returning lawful permanent resident. INS officials apprehended and detained Alaka when they discovered that she had an outstanding federal warrant. Although the charged violation was later dismissed, the INS continued to detain Alaka because of her criminal history, asserting that her criminal conviction made her removable from the United States. A Notice to Appear given to her said she was an “arriving alien” based on her earlier conviction. The Notice to Appear also charged that her conviction constituted a crime of moral turpitude and rendered her ineligible for admission and subject to removal. She also had a foreign crime conviction which a judge held had constructively abandoned her status as a permanent resident.

Legally, if an arriving alien falls within one of the categories of “inadmissible” aliens, the arriving alien will be deemed inadmissible. Most importantly, any alien convicted of committing a crime of moral turpitude will be deemed inadmissible. If an immigration officer determines that an arriving alien (including those lawful permanent residents) is not clearly admissible, the alien is placed into one of two types of removal proceedings: “expedited removal” or “regular removal”. Under regulations, verified lawful permanent residents are never subject to expedited removal. See, 8 C.F.R. § 235.3(b)(5)(ii). They are placed in regular removal proceedings before an immigration judge. Alaka's status as a lawful permanent resident prevented her from expedited removal and she was subject to regular removal proceedings pursuant to INA § 235(b)(2). The appeal of the case was actually over the issue of bond hearings, so the merits of abandonment were not discussed or decided upon.

In Moin v. Ashcroft, 335 F.3d 415 (5th cir. 2003) the court found abandonment despite the applicant having obtianed reentry permits!!! In August 1991, Zeba Moin, a native and citizen of Pakistan, was lawfully admitted for permanent residence in the United States as the unmarried daughter of a permanent resident father. Two months later, in October 1991, she left this country to return to Pakistan. Over the next fifty-four months, Moin made several trips between the two countries. During that period, her total stay in the U.S. was approximately six months. On February 2, 1996, Moin returned to the United States from her latest trip, accompanied by her son, Moiz Ullah. She had left Pakistan on a round-trip airline ticket with a return date of 3 months later. Upon her arrival in the United States, she presented her permanent resident card and Pakistani passport to the primary immigration officer at Houston Intercontinental Airport. She was then referred to secondary inspection to process her son for admission. The secondary officer deferred her inspection to the INS Houston District Office because of the length of time she had spent outside the United States. An INS inspector ultimately concluded that Moin had abandoned her status as a lawful permanent resident and was therefore inadmissible to the United States. The IJ found Moin had abandoned her lawful permanent resident status in October 1991 and ordered Moin and her son excluded and deported from the United States.

Importantly, Moin argued that her trips to Pakistan were “temporary visits abroad” for two reasons. First, she notes that no trip exceeded two years, and she obtained a reentry permit valid for two years. However, the court said that “temporary visits” are not defined in terms of elapsed time alone. Also, a reentry permit, in and of itself, does not prevent a finding that an alien has abandoned her permanent residency status. Practitioners should note: “A reentry permit does not guarantee [an alien's] return if he or she is found inadmissible on seeking reentry.” A reentry permit merely serves as evidence of an alien's intent to return, which the Government may refute by clear, unequivocal, and convincing evidence. Moin’s various returns to the United States from Pakistan were not linked to any identifiable triggering event occurring within a reasonably short time frame.

Second, Moin argues that she always intended to reside permanently in the United States. “The relevant intent, [however], is not the intent to return ultimately, but the intent to return to the United States within a relatively short period.” An applicant's desire to maintain her status as a permanent resident, without more, is insufficient; the alien's intent must be supported by her actions.

In October 1991, two months after arriving in this country, Moin returned to Pakistan at her parents' urging, to consider several marriage proposals and obtain a husband. She expressed an intent to be away from the United States for only a few months, but instead stayed in Pakistan almost a year. While in Pakistan, Moin soon married. The wedding ceremony and related cultural events extended for a period of three months. Moin's stay in Pakistan was further extended when she became pregnant with her first child. She remained in Pakistan throughout the pregnancy because she was occasionally sick and because her husband was not able to come with her to the United States. Moin finally returned to the U.S., leaving her husband and newborn child in Pakistan. Here, she filed a visa petition for her husband and obtained a re-entry permit for herself that was valid for two years. Approximately two months later, in December 1992, she returned to Pakistan because her husband asked that she do so to care for her child, who was ill. The child ultimately died. Moin did not return to the United States until later, explaining that she had become emotionally distraught following the death of her child and that her doctors had advised her not to travel. She ultimately returned to the United States shortly before her re-entry permit was to expire. Moin stayed in this country for approximately two more months and then left again after receiving telephone calls from her husband, expressing his loneliness and desire that she return. She had intended to stay in Pakistan only a month or two but actually stayed until much more. In the meanwhile, she became pregnant with her second child. She claimed that this second child was also sickly, which required her to wait three months after his birth before returning to the United States.

The evidence also reflected that Moin lived with her parents most of the time that she was in the U.S., with one short stay at a brother's house. Moin had only a few personal items at her parents' home and owned no real property in the United States. She had no verified employment, although she claimed to have performed some brief babysitting chores, and she had paid no income taxes in the United States. During the same time period, Moin was listed as joint owner with her husband of two shops and an apartment in Pakistan; her husband purchased a car for her in Pakistan; and her husband bought a home in Pakistan while Moin was in the United States. Further, although Moin initially entered the United States in 1991 on a one-way airline ticket, her later entries were always with round-trip tickets, including the last entry in February of 1996. Moreover, the immigration judge noted evidence that, in the Pakistani culture, a wife is expected to abide by her husband's wishes, and it is unacceptable for a wife to live apart from her husband absent extraordinary circumstances. The immigration judge also expressed concern over the lack of documentation as to the nature and extent of the illnesses of both children. Finally, he perceived certain inconsistencies between the testimony of Moin and her relatives, and also between her testimony and her earlier sworn statement given to immigration officials. They said that the totality of the record and not any single finding perspective, provided evidence so compelling in Moin's favor that no reasonable person could have made the same findings and conclusions, affirming the abandonment.

In Khodagholian v. Ashcroft, 335 F.3d 1003 (9th Cir. 2003) Khodagholian was admitted to the United States as an LPR on July 5, 1993, when he was 41 years old. He arrived with his wife and their two children, who were also admitted as lawful permanent residents. Khodagholian made the admission that when he and his family first came to the United States, he was not sure whether they would stay, in light of all the uncertainties associated with such a move. They brought $14,000 with them, but did not sell off everything they owned in Iran. In the five years in the United States from July 1993 to September 1998, excluding the periods he was in Iran, Khodagholian and his family lived in the Los Angeles area. He worked sporadically doing electrical work, telemarketing, and painting. It is not clear how often he worked or how much he was paid, but it appears from the record that he worked intermittently at best. Khodagholian's wife was employed during much of that time. Their son attended high school in this country from 1993 to 1997 and college starting in 1997. Their daughter attended school here as well, at least from 1996.

The challenge to Khodagholian's status is based primarily upon three trips he made to Iran during the five years and two months between his first arrival to the U.S. and return from his third trip The First for roughly four months, to sell some items and gather documents needed for the children's schools and other purposes in the U.S. His wife and children went with him to Iran, but they returned to California after two months. Second by himself for five to six months to care for his dying mother and his recently orphaned nephews. Third, Khodagholian was gone for roughly 15 months. That trip was made alone, while his wife and children remained in the United States. The stated purpose was to sell the family's house in Iran. When Khodagholian arrived in Iran, he was stopped by Iranian police at the airport and notified of a tax bill from a partnership he had sold before coming to the United States. He was told that he was barred from leaving Iran until the taxes were paid. However, he did not return to the United States immediately after that issue was cleared up, a fact that the IJ concluded to be significant. Khodagholian argued that he had borrowed the money to pay the tax bill, and had to stay on in order to pay back that debt.

Upon re-entry into the U.S. he was stopped. After an interview, the INS suspected that he did not qualify as a “returning resident,” because he had overrun the one-year regulatory limit on re-entering without needing a re-entry permit. He was issued a Notice to Appear, which charged him as an inadmissible alien under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), “who at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border identification crossing card, or other valid entry document required by the [INA].” And was found in court to have abandoned status and subject to removal. The IJ acknowledged the authenticity of the document Khodagholian introduced showing that he was not cleared to leave Iran until 11 months into his 15 month trip, but took issue with the subsequent four months during which Khodagholian remained in Iran, ultimately concluding that the cumulative impact of the evidence showed lack of an intent on the part of Khodagholian to reside permanently in the United States. Regarding the three trips, the IJ found that “not any one of these absences” was sufficient to show abandonment, but that only “cumulatively,” with all the other factors, could such a finding be established.

However, the 9th circuit concluded that, whether viewed cumulatively or individually, Khodagholian's absences did not support a conclusion that he abandoned his permanent residence in the United States. Khodagholian was in the United States for a substantial majority of the time between his initial entry in 1993 and the initiation of these proceedings. During that time he made three trips back to his native Iran. Although each of his three trips back to Iran was for a somewhat extended period, those absences did not demonstrate an intent or desire on his part to remain in Iran and give up his LPR status in the United States. To the contrary, during those trips he sold assets and sought to wind up his affairs in Iran. Such actions weigh against the notion that he had abandoned his LPR status in the United States in favor of remaining in Iran.

His wife and children remained in the United States for almost the entire time. His son was attending college and his daughter high school, both in this country. His wife was unemployed at that time, but previously had worked, also in the United States. He spent a larger share of the time since 1993 together with them, in California. His return to Iran for six months to care for his terminally ill mother and for his recently orphaned nephews fall within the category of contingencies which had a “reasonable possibility of [terminating] within a relatively short period of time” and thus do not support a conclusion that he had abandoned his LPR status. Neither did the purposes of the other two trips, to sell property and other assets in Iran and to gather documents needed in the United States.

The unusual duration of the third trip to Iran, when Khodagholian was gone for 15 months, could represent substantial evidence of abandonment in other circumstances. But he was required to remain in Iran involuntarily due to the unanticipated tax claim. Since the only evidence regarding the purpose of that trip is that he went to Iran with the intention of selling his house (an action inconsistent with an intent to remain in Iran), this visit would also have “terminate[d] upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time.”  The fact that he stayed on for just four months after resolving his tax problem cannot reasonably show that he lacked a continuous, uninterrupted intention to return. Much is made on appeal of Khodagholian's employment and tax history. To be sure, Khodagholian does not seem to have a prosperous career in the United States. His spotty employment history, however, would have more weight if he had a job or business in Iran, but neither the IJ nor the government on appeal asserts that he worked in Iran on any of the trips. In cases where employment has been held against aliens, they have generally worked abroad. We believe that the fact that Khodagholian was not consistently employed in the United States weighs against him in the overall abandonment inquiry, but that is insufficient to overwhelm the other factors showing an intent to reside in the United States. The same goes for taxes. Even though Khodagholian did not file a United States tax return, given the totality of other factors, this fact is insufficient to conclude that he abandoned his residence in the United States. In sum, from these facts, it cannot reasonably be concluded that the INS carried its burden by clear, unequivocal, and convincing evidence that Khodagholian lacked a “continuous, uninterrupted intention to return to the United States. Abandonment was not found.

Finally, In Hana v. Gonzalez, 400 F.3d 472 (6th Cir. 2005).  On May 22, 1992, Hana was granted LPR status pursuant to a petition filed in 1981 by her brother. Hana immediately filed petitions for her husband and four children. She testified that she was told that her children would be granted visas within three years. On July 26, 1992, after two months in the United States, Hana returned to Iraq, and to her job as an inspector at the Central Bank of Iraq-a government job under the regime of Saddam Hussein. Hana testified that she returned to Iraq to work “because they notify people when they have to return in the newspaper. And if one doesn't return, they will hurt their children or their family.” She also testified that she could not tell her Iraqi employer that she was emigrating to America because if she did “they wouldn't allow [her] to leave.”

In October 1994, Hana returned to the United States with an INS-issued multiple-entry re-entry permit that was valid until October 26, 1994. Hana testified that when she left Iraq in 1994, it was her intention not to leave the United States again, but to wait here for her children to immigrate from Iraq. Hana also testified that she brought with her from Iraq over $10,000 in gold jewelry and money, which she gave to her brother in Michigan, so that she could purchase a home and a car and help provide for her children when they arrived in the United States. Hana nonetheless returned to Iraq in December 1994, in response to repeated telephone calls from her husband stressing her mother-in-law's critical health condition. Before leaving for Iraq, Hana obtained another re-entry permit valid until December 28, 1996.

Upon returning to Iraq in 1994, Hana resumed her employment at the Central Bank. She testified that she had not planned to return to work in Iraq in 1994, but that she did because “they contacted me to return to work and I am afraid to refuse because maybe the [Iraqi] security agents would come…and they'd hurt my children....” Hana also testified that she worked to help out with the cost of living. Hana testified that she attempted to return to the United States in January of 1996 (nearly a year before the expiration of her re-entry permit), but that when she “tried to leave at the border ... they wouldn't allow [her].” According to Hana she did not attempt to return to the United States prior to January 1996 because she was waiting for her son, who finally arrived here in December 1995, and because of her mother-in-law's failing health.

Hana returned to the United States on December 13, 1996, roughly two weeks before her re-entry permit was set to expire. She was detained at JFK airport for questioning by INS agents. During the interview Hana stated that she was returning because her re-entry permit was about to expire and she “did not want to lose [her] green card.” She also stated that she had a ticket for a return flight to Jordan in four months, but that she would not leave the United States unless she first obtained another re-entry permit. In her answer to a question asking whether she ever intended to take up residency in the United States, Hana responded, “Yes, I go back because my children are there when they can come here I will stay. I petitioned for them in 1992.” Practitioners should note that these types of statements will get their client in trouble. Also note that a reentry permit was challenged again. Hana never worked in the United States and worked in Iraq until tendering her resignation, that she had never paid income taxes in the United States, and that she owned no property in the United States. Based on these responses and the length of her absence from the United States, the INS refused Hana's admission and charged her with excludability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an immigrant without a valid visa.

The Board denied her appeal on the fact that Hana had lived in the United States for only a three-month period, and that for the balance of this time she was living and working in Iraq, where her family, permanent employment, and property were located. Also she had no property, bank account, doctor, or driver's license in the United States, and that she had not paid taxes here. Determining that her trips abroad were “not temporary within the meaning of the act,” that Hana “remained in Iraq for her convenience and choice, that she was not compelled to remain, and that the [INS] showed clear, unequivocal, and convincing evidence that the applicant's prolonged departure from the United States constituted an abandonment of her lawful permanent resident status.”

The Appeals court overturned this decision based on the totality of the alien's circumstances. It said that while it is certainly proper to consider factors such as the location of the alien's family, property, and job, and of course the length of the alien's trip(s) abroad, we should be careful not to focus on these factors to the exclusion of other evidence in the record demonstrating the alien's intent with regard to maintaining her LPR status. Examined in this context, we are convinced that the evidence relied on by the Board is not sufficient to demonstrate that Hana did not have the requisite intent “to return [to the United States] within a period relatively short, fixed by some early event.”

Upon obtaining LPR status for herself Hana immediately filed immigration petitions for her husband and four children. She testified, and there is no evidence to the contrary, that she was told that her children would be granted visas within three years, and she was clearly under the impression that so long as she returned to the United States before the expiration of her re-entry permit, she could travel to Iraq to prepare her family members for their emigration and not risk losing her cherished LPR status. Part of that preparation included helping out with her sick mother-in-law and continuing her job at the Central Bank so that Saddam's henchman did not harm her family members on the eve of their emigration. Another component was transporting her valuables to America so that she could lay the foundation for her family's life in the United States. It is obvious that Hana's intent all along was to facilitate her family members' joining her in the United States within a few short years, not to throw away the LPR status that she had waited eleven years to obtain. Finally, it is certainly worth noting that Hana's efforts to bring her family to the United States were ultimately successful. As of the date of the hearing before the IJ, two of Hana's children and her husband had been admitted to this country on the basis of Hana's LPR status.

Hana's failure to put down roots in the United States was due almost entirely to her desire to help her loved ones safely flee a brutal totalitarian regime and to her obligation to assist in the care of her terminally ill mother-in-law. The evidence in this record demonstrates that Hana's clear intent was “to return within a period relatively short, fixed by some early event”-the safe emigration of her family from Iraq, which she expected to occur anytime within three years.

It distinguished this case with the Singh case, due to the circumstances the person faced. Singh obtained LPR status in 1990 and then spent the better part of the next two and a half years in Great Britain visiting his wife and child, whose immigration petitions were pending in the United States at the time. While Singh's wife and child could not reside in the United States while their petitions were pending, the court said they were free to visit U.S., yet Singh still chose to spend the bulk of his time in Great Britain. Unlike Singh, who was traveling freely between two relatively safe democratic nations, Hana was acting to protect her family from a dictatorial regime with an infamous human rights record. Although we view Singh as a close case, especially given the INS's heavy burden in proving abandonment, it is clearly distinguishable from Hana's situation in at least this one crucial respect: while Singh's decision to spend most of his time abroad was arguably motivated by convenience, Hana's similar decision was clearly motivated by the safety and welfare of her family.

An important note was that although the court this distinguished this case from Singh, Singh was in the 9th circuit, which this 6th circuit court said is not binding it.


  • Be careful with reentry permits, they are not miracle workers
  • Burden is on the government to prove abandonment (but not for granting benefits to preference visas)
  • Removal proceedings are required if able to get to the US
  • If found abandoned, good facts and fighting can save you.
  • But overall, advise clients to keep ties to the US (familial, financial) and avoid absences!


For Immigration Lawyers!

Visit www.ImmigrationLawyersListserv.com to join free forums to discuss immigration issues with other Immigration Lawyers. Only licensed attorneys are allowed to join!

Contact Us! Gives Us Your Thoughts!

Is there any question you have regarding the podcast guest that is not addressed in this blog post? Please leave me a comment below or send me your thoughts at ImmigrationLawyersListserv@gmail.com.  I would really appreciate your feedback, your suggestion on future guests, or just an opportunity to chat with you!

*None of the information provided here is considered legal advice. Please consult an attorney privately.