A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, October 24, 2011

When is a Lawful Permanent Resident considered seeking admission to the United States?

The United States immigration laws confer certain rights and privileges to a person who has been granted Lawful Permanent Resident (LPR) status by the government.  These individuals, commonly known as green card holders, are authorized to work and live in the United States indefinitely.  Legal residents are also allowed to return to the United States after international travel.  Nonresidents, on the other hand, are considered applicants for admission and must establish that they are admissible to the United States in order to enter.

Sec. 101(a)(13)(C) of the Immigration and Nationality Act provides that a returning LPR should not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the legal resident (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 and extradition proceedings, (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.

If either one of the six conditions apply, the returning green card holder is considered an applicant for admission and will be subject to less legal protection that he or she normally enjoys as a legal resident.  A LPR is like a person who is returning home with a key (his green card) while an applicant for admission is like a visitor asking for permission to enter another person’s house.  A visitor seeking admission but not a legal resident is subject to all the grounds of inadmissibility contained in the immigration statutes.   When a legal resident is placed in removal proceedings, the government must first prove by clear, unequivocal, and convincing evidence that the grounds and basis for deportation are true before the person may be removed from the United States.  The burden of proof is on the government to prove that the person is deportable.  Similarly, to treat a returning resident as seeking admission to the United States, the Department of Homeland Security bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident falls under one of the above six categories of individuals.

For example, in a recent Board of Immigration Appeal (BIA) case, Matter of Benno Rivens, decided on October 19, 2011, the Board remanded the case to the Immigration Judge to analyze if the offenses committed by the respondent - a green card holder - constitute a crime involving turpitude (CIMT).   (This falls under condition v above.) If the DHS meets its burden by proving by clear and convincing evidence that the respondent had committed a CIMT, then he would be treated as an applicant for admission.  Further, since convictions of CIMTs are also grounds of inadmissibility, he would also not be allowed to be admitted to the United States and, consequently, he would lose his green card.  On the other hand, if the government fails to meet it burden of proof, the respondent would be allowed to return to the United States as a lawful permanent resident. 

Hence, before a legal resident travels outside of the United States, it is very important for him to determine whether or not he will be regarded as a returning resident or an applicant for admission upon his return.  Sometimes, it may be wise for a legal resident not to depart the United States at all. 

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