LOSS OF PERMANENT RESIDENCY

There are three grounds for loss of permanent residency status: rescission of adjustment status, removal due to inadmissibility or deportability and abandonment of status.

Rescission of Adjustment of Status can be sought by the government within five years of the adjustment of status if the person wa not eligibile for the status at the time it was obtained:

Rescission will also apply to all persons who received derivative status based on the primary LPR granted.

Removal due to Inadmissibility or Deportability is determined in an immigration court hearing.

Inadmnissibilty: statutory grounds for removal are applied to individuals who have not been legally admitted into the United States.

• The burden of proof to show that there are no grounds for inadmissibility is with the person seeking admission.
• The subject person has no right to be free on bond when there is pre-hearing detention.
• A person in possession of a valid visa issued by a consular officer is prima facie evidence that the person is eligible for admission.

Grounds for Inadmissibility

• Heatlh: a person
  • with a communicable disease of public health significance, including those who are HIV positive; however, but the person may obtain a waiver if he or she is hte spouse, parent, unmarried son or daughter, or the minor unmarried adopted child of a U.S. citizen or LPR, or person who has been issued an immigrant visa;
  • with psychological problems tht could make them dangerous to others or to themselves; the person may obtain a waiver at discretion of the Department of Homeland Security including the requirement of posting a bond;
  • who are drug abusers; no waiver is available for drug users.
• Criminals - including persons
  • convicted of crimes involving moral turpitude (CIMT);
  • who have violated state, federal, or foreign laws relating to controlled substances;
  • convicted of petty offense crimes are exempted unless the crime involved moral turpitude.

Deportability: statutory grounds for removal applicable to aperson who has been formally admitted into the United States.

• The burden of proof is on the government , and, following admission, the subject person has more constitutional protections (then under inadmissibility).
• The person has the right to bond unless there is a particular criminal or terrorist circumstance.

Grounds for Deportation: For a person who within five years of admission becomes a public charge from causes that arise after entry.

Expedited removal is limited to aliens arriving without documents, or who's travel documents were obtained through fraud or willful misrepresentation, and removal occurs without a hearing.

Expedited removal cannot be applied to

• a person who claims to be a U.S. Citizen;
• Legal Permanent Residents (LPR);
• Cuban citizens who are seeking admission at an airport; or
• those who have been granted refugee or asylum status, or have a claim to it:

  A person who fears persecution or torture must express that fear to an immigration inspector and then establish a "credible fear of persecution" to an asylum officer who determines whether the person will be permitted to apply for asylum or torture relief.

  If the claim of credible fear is refused, the person who fears persecution or torture may request review by an Immigrant Judge (an employee of the Department of Justice's Executive Office of Immigration Review). Appeal of the Immigration Court's decision (to federal court) must be made within 30 days of the decision.

Abandonment of Status (loss of legal permanent residency) :

• By statute, the holder of a Green card who leaves the U.S. is only permitted to re-enter the U.S. if the person was out of the U.S. for less than one year;
• However, under case law, abandonment of status goes to intent, and a determination of abandonment can apply to absences of less than ayear, and legal residency can be retained for more than a year based on a determination of intent.