Upon return to the United States from travel abroad, Lawful Permanent Residents (LPRs) have certain due process rights, including the right to a hearing before an immigration judge before they can be stripped of their permanent resident status.
Due Process Rights of LPRs
LPRs enjoy greater due process rights than nonimmigrants when returning to the United States after travel abroad. Like all international travelers, upon return, LPRs are subject to inspection by CBP. CBP may question and screen LPRs to determine whether they are a “returning resident” or whether they should be treated as an “arriving alien.” Under INA §101(a)(13)(C), a returning resident shall not be regarded as seeking “admission” to the United States, (i.e., shall not be treated as an arriving alien), unless he or she:
• Has abandoned or relinquished LPR status;
• Has been absent from the United States for a continuous period in excess of 180 days;
• Has engaged in illegal activity after having departed the United States;
• Has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under the INA and extradition proceedings;
• Has committed an offense under INA §212(a)(2) [criminal and related grounds of inadmissibility], unless since such offense the alien has been granted relief under INA §212(h) [waiver of inadmissibility] or §240A(a) [cancellation of removal for permanent residents]; or
• 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.
An LPR who is deemed to be seeking admission may be charged as removable from the United States as an arriving alien. LPRs that are charged as removable, including those who are alleged to have abandoned their U.S. residence, have the right to a hearing before an immigration judge. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). Despite this, CBP may attempt to convince an LPR that their absence from the United States resulted in automatic abandonment of their U.S. residence, and urge them to sign a Form I- 407, Record of Abandonment of Lawful Permanent Resident Status. As AILA recently advised, an individual does not lose LPR status merely because of time spent abroad. An LPR remains an LPR unless the government proves abandonment by clear, unequivocal, and convincing evidence and until an order of removal is issued and becomes final.
Form I-407 must be signed voluntarily and there are no negative consequences if an LPR refuses to sign the form. Neither failure to sign nor abandonment of LPR status by itself is grounds for detention by CBP. If CBP makes a determination, by a preponderance of the evidence, that the LPR abandoned his or her residence in the U.S., and the LPR refuses to sign a Form I-407, CBP’s only recourse is to issue a Notice to Appear (NTA) before an immigration judge. Even LPRs who have signed a Form I-407 retain the right to request a hearing before an immigration judge to determine whether LPR status was abandoned. See Matter of Wood, No. A24-653-925 (BIA 1992). Should CBP confiscate the LPR’s permanent resident card, the LPR has the right to alternative evidence of LPR status, such as an I-94 card and/or passport stamp.
Right to Counsel
CBP has long held that there is no “right to counsel” during the inspection and admission process, although attorneys are sometimes permitted, at the agency’s discretion, to accompany clients who are detained in secondary inspection and/or are ordered to appear at a deferred inspection office. This interpretation is supported by 8 CFR §292.5(b) which applies generally to all immigration proceedings and states:
(b) Right to representation. Whenever an examination is provided for in this chapter, the person involved shall have the right to be represented by an attorney or representative who shall be permitted to examine or cross-examine such person and witnesses, to introduce evidence, to make objections which shall be stated succinctly and entered on the record, and to submit briefs. Provided, that nothing in this paragraph shall be construed to provide any applicant for admission in either primary or secondary inspection the right to representation, unless the applicant for admission has become the focus of a criminal investigation and has been taken into custody.