St. Louis Immigration Attorney Discusses BIA Decision Which Held that LPR Who Left US for 4 years Abandoned Lawful Residence

In a recent unpublished decision from the Board of Immigration Appeals (BIA), the court held that a man from the Dominican Republic had abandoned his lawful permanent resident (LPR) status by staying outside the United States for more than 4 years.  The man, Oliver Garcia Guzman, had left Puerto Rico in 2007 for the Dominican Republic, where he stayed until 2011.

When the man tried to return, the Department of Homeland Security charged him as removable (for reasons not entirely clear in the opinion).  The man conceded removability, but argued that he should have received a waiver for his long stay outside of the U.S.  In order to be eligible for a waiver, the man had to show that he was a “returning resident immigrant” who had returned from a “temporary” visit abroad.  As an LPR, the BIA noted that the man was entitled to a presumption of eligibility for a waiver.

However, as the court noted, the presumption can be overcome if the Department can demonstrate that the person abandoned his residency.  That inquiry is a multi-step process which looks at the length of the absence, as well as the family, business and property ties that remain in the U.S.  The BIA began by noting that four years is a long time to be gone and that it was an indicator of abandonment.

Next, the BIA rejected the immigrant’s argument that because he was studying for his MBA in the D.R., which was reportedly cheaper and paid for by his father who lived in the D.R., that he had not abandoned his residency.  The court found that the additional two years that the alien spent working in the D.R. after his degree cut against his position.

Another problem for the alien was the fact that his common law wife, children and father all lived with him in the D.R.  This demonstrated greater family ties in that country than in the U.S.

For these reasons, the BIA upheld the decision by the immigration judge ordering the alien removed from the U.S.

The big lesson here is that if you have lawful permanent resident status, you hold something very valuable.  If you leave the U.S. for a prolonged visit, you place that LPR status in jeopardy.  There are things this fellow could have done to prevent his deportation.  We have had plenty of potential clients come to us in similar situations and it is frustrating because the deportation could have been avoided altogether.

If you have questions regarding how to maintain your lawful permanent resident status, please give us a call at (314) 961-8200.