IMMIGRATION CORNER – What are a green card holders’ rights if they get stuck at the airport when returning to the US? by Michael J. Gurfinkel

IMMIGRATION CORNER –By Michael J. Gurfinkel, Esq.

Recently, the American Immigration Lawyers Association (AILA) posted a brochure concerning lawful permanent residents’ (LPR or green card holder) rights when they are detained at a port of entry, such as an airport, border crossing, or ship dock. Here are some of the key points of that brochure:

If questions or issues arise at the immigration booth, the person may be sent to “secondary inspection,” where CBP will ask you questions and may collect biographic and biometric data, run record checks, and determine whether you should be admitted to the United States.

If you are detained by CBP in secondary inspection, you have the following rights:

• If you have a lawyer, you should ask CBP for permission to contact your lawyer. Note, however, that CBP may tell you that you do not have the right to speak to an attorney.

• You have the right to review all written statements that are prepared for you, in a language that you can understand, such as Tagalog.

• If you do not agree with the contents of any papers or statements that are presented to you, you may refuse to sign them. (In other words, if CBP types of a “confession” for you to sign, but it is not accurate, you should not sign it.)

• CBP may search your cell phone, computer, iPad, text messages, and access your email and Facebook and Twitter accounts, to see if you posted anything that affects your admissibility.

• If CBP determines that you are an “arriving alien,” you could have problems. An arriving alien includes the following people, even if a green card holder:

• Have abandoned or relinquished your LPR status. (This situation typically arises if a green card holder has stayed outside the US for a year or more);

• Have been absent from the US for a continuous period of more than 180 days;

• Engaged in illegal activity after departing the US;

• Departed the US while in removal proceedings or extradition proceedings;

• Committed certain criminal offenses unless you were granted an immigration waiver; or

• Are attempting to enter without inspection.

Right to a hearing before an immigration judge. An LPR who is deemed to be an “arriving alien,” may be placed in removal proceedings, and would have the right to a hearing before an immigration judge.

Abandonment of residence/LPR status. CBP may attempt to convince you that you abandoned your residence because of your lengthy or repeated absences from the United States and may urge you to sign a Form I-407, Record of Abandonment of Lawful Permanent Resident Status. However, it is important to know:

• You cannot lose your LPR status solely because of time spent abroad.

• An LPR remains an LPR unless the government proves abandonment by clear, unequivocal, and convincing evidence and an order of removal is issued by an immigration judge and becomes final.

• Form I-407 must be signed voluntarily. You may refuse to sign the form and there are no negative consequences if you refuse to sign it.

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If CBP believes that you abandoned your US residence and you refuse to sign a Form I-407, CBP must issue you a Notice to Appear (NTA) before an immigration judge who will determine if you have abandoned your US residence. CBP cannot make this decision on its own.

If CBP believes that you abandoned your US residence and you sign a Form I-407, you still have the right to request a hearing before an immigration judge.

If CBP takes your permanent resident card, you have the right to other evidence of your LPR status, such as a stamp in your passport.

Future Travel. To avoid delays at the ports of entry or legal issues in the future, you should consult with an immigration attorney prior to traveling if you:

• Have a criminal record (criminal convictions or a pending criminal charge).

• Have an application pending with US Citizenship and Immigration Services (USCIS) or the Executive Office for Immigration Review (EOIR).

• There is anything in your immigration history that was not disclosed during your immigration process or that might cause a government official to question you about the reason for your travel or about your immigration history.

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