INTRODUCTION
At the port of entry, U.S. Customs and Border Protection (CBP) may screen lawful permanent residents (LPRs) to determine whether they are a “returning resident” or an “arriving alien.” The LPR may be subject to secondary inspection and during secondary inspection, CBP may ask questions, collect biographic and biometric data, run record checks, and determine whether LPR should be admitted to the United States. If CBP determines that the LPR is a “returning resident,” they will often be processed quickly and admitted in to the U.S. Arriving aliens may be removable from the United States, if they have:
1.Abandoned or relinquished their LPR status;
2.Absent from the U.S. for a continuous period of more than 180 days;
3.Engaged in illegal activity after departing from the U.S.;
4.Departed the U.S. while in removal proceedings or extradition proceedings;
5.Committed certain criminal offenses unless they were granted an immigration waiver;
6.Are attempting to enter without inspection.
DO NOT SIGN I-407
LPRs have rights under the law when they are detained by CBP upon arrival. The most common issue we see at ports of entry, is that the LPR has been absent from the US for an extended period and CBP believes they have either abandoned or relinquished their LPR status.
We often see CBP doing the following:
1.CBP may urge them to sign a Form I-407 (Record of Abandonment of Lawful Permanent Resident Status);
2.If CBP believes that LPRs have abandoned their residence and LPR refuses to sign Form I-407 then CBP must issue an NTA to appear before an immigration judge. (Note: If an NTA is not issued, the LPRs have the right to request a hearing before an immigration judge).
DEFERRED INSPECTION
Abandonment of permanent residence is a fact specific inquiry and LPRs should never sign I-407 or any statement/document that waives their rights or otherwise surrender their “green card.” GLF always advises clients to ask for “deferred inspection” if they are detained by the CBP. By asking for “deferred inspection,” LPR has the means to go back to CBP at a later date with evidence (that they may not have in their possession at the port of entry) and also be accompanied by a lawyer to the “deferred inspection.” Documents that can be taken to show that the LPR has not abandoned residence include:
1.US income tax returns;
2.Bank statements;
3.Apartment lease;
4.Mortgage statement;
5.Credit cards;
6.Utility bills;
7.Driver’s license and other indicia of ties to US.
KNOW YOUR RIGHTS
LPRs, as such need to be aware of their following basic rights:
1.In case they have a lawyer, they have the right to ask CBP for permission to contact them. However, CBP may refuse their right to consult their attorney;
2.Right to review all written statements prepared in a language well known to LPRs;
3.LPRs have the right to refuse to place their signature on the papers if they do not agree to its content;
4.LPRs if considered as “Arriving Aliens” have the right to a hearing before an Immigration Judge.
However, LPRs cannot claim right to privacy in case of their mobile phone, computer, tablet, or other electronic devices as CBP has the legal authority to search all such devices and also can access emails and social media screens during the process of Inspection.
CONSULT A LAWYER
In order to avoid any legal issues at the port of entry, GLF advises LPRs to always consult an immigration attorney prior to travelling (in or out), especially in the following scenarios:
1.If they have been absent from US for a long time and they are returning to US (we often encourage those with a significant absence from US to seek a Returning Resident visa or SB-1 visa from the US Consulate in their home country to avoid any issues at the port of entry);
2.If one has a criminal record (or a pending criminal charge);
3.If an application is pending before USCIS or the Executive Office for Immigration Review (EOIR).
CONCLUSION
In summary, on issues of Abandonment of Residence due to extended absences, the LPR should always remember to ask for “deferred inspection” and not sign any statement or form I-407 that waives their rights. LPRs have the right to be accompanied by Counsel at the deferred inspection and present evidence to rebut any findings of abandonment of residence. If the LPR has any legal issues that could hinder their return back from a trip abroad, they should consult an immigration lawyer, even before they depart the US.
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GLF will continue to follow further developments in this matter and we will provide updates through our Newsletter as and when they become available.
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