Tag: Notices to Appear

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KNOW AND UNDERSTAND YOUR RIGHTS: For Green Card Holders Detained at a U.S. Port of Entry or Airport

Know Your Rights Green Card Holder Detained US Airport
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Green card holders returning from international travel have fundamental rights. A valid green card serves as proof that the traveler is authorized to enter the United States as a returning resident. However, if the Customs and Border Protection (CBP) officer has concerns about your immigration history, prior criminal activity, or past violations, you may be referred to secondary inspection for further questioning.

Determining Your Status Upon Re-Entry

If CBP determines that you are a returning resident, you should be processed quickly and allowed to enter the U.S. However, if CBP categorizes you as an arriving alien, you may be found inadmissible and subject to removal proceedings.

You may be classified as an arriving alien if you:

  • Abandoned or relinquished your lawful permanent resident (LPR) status
  • Were absent from the U.S. for more than 180 consecutive days
  • Engaged in illegal activity after departing the U.S.
  • Left the U.S. while in removal or extradition proceedings
  • Committed certain crimes, unless you were granted a waiver
  • Attempted to enter the U.S. without inspection

If you are categorized as an arriving alien, you may be placed in detention, denied entry, or required to appear before an immigration judge.

Your Right to a Hearing Before an Immigration Judge

If CBP deems you an arriving alien and charges you as removable, you have the right to a hearing before an immigration judge. Only an immigration judge—not CBP—can make a final decision regarding your lawful permanent resident status.

If CBP believes you have abandoned your residence but you refuse to sign a Form I-407 (Record of Abandonment of Lawful Permanent Resident Status), CBP must issue you a Notice to Appear (NTA) so you can present your case in immigration court.

What to Expect at Secondary Inspection

Referral to secondary inspection is not an automatic denial of entry. It is an additional screening process where CBP officers will:

  • Ask you questions about your travel and background
  • Collect biographic and biometric data
  • Conduct record checks
  • Determine whether you qualify as a returning resident or an arriving alien

This process can take anywhere from a few minutes to several hours, depending on the complexity of your case.

Your Rights During Secondary Inspection:

  • Right to Contact Your Consulate: You may request assistance from your home country’s consulate. The consulate can help you communicate with a lawyer or your family.
  • Right to Request a Lawyer: Although CBP may inform you that you do not have the right to legal counsel during inspection, you should still ask CBP to document your request for an attorney.
  • Right to Review Documents in a Language You Understand: Any documents CBP presents to you should be available in a language you can read and understand.
  • Right to Refuse to Sign Documents You Do Not Agree With: You are not required to sign any documents if you disagree with their contents.

Privacy Limitations:

  • No Right to Privacy for Electronic Devices: CBP has the authority to inspect your personal belongings, including your phone, laptop, and other digital devices. They may review emails, social media accounts, and other personal data.
  • CBP May Retain Your Devices: Your electronic devices may be held temporarily and returned to you at a later time.

Abandonment of Residence – Know Your Rights

CBP may claim that you abandoned your U.S. residence due to prolonged absences from the country and may pressure you to sign Form I-407 (Record of Abandonment of Lawful Permanent Resident Status).

Important Facts About Abandonment:

  • Time Spent Abroad Alone Does Not Automatically Lead to Losing Your Green Card. CBP must prove by clear, unequivocal, and convincing evidence that you intended to abandon your U.S. residence.
  • Form I-407 Must Be Signed Voluntarily. You are not required to sign it, and there are no negative consequences for refusing to sign.
  • If You Sign Form I-407: You still have the right to request a hearing before an immigration judge to contest the abandonment claim.
  • If CBP Takes Your Green Card: You have the right to request alternative proof of your lawful permanent resident status, such as a stamp in your passport.

Proactive Steps to Protect Your Status

To avoid delays or legal complications at the airport, consult with an immigration attorney before traveling if:

  • You have a criminal record (including arrests, convictions, or pending charges).
  • You have a pending application with U.S. Citizenship and Immigration Services (USCIS) or the immigration court (EOIR).
  • There are undisclosed issues in your immigration history that could raise concerns during re-entry.

Final Takeaway

As a lawful permanent resident, knowing your rights is crucial when traveling internationally. Not all green card holders face detention upon return, but those classified as arriving aliens may be subject to increased scrutiny and enforcement actions.

Remember: Your green card is your legal proof of U.S. residency, and you should not be pressured into relinquishing it. If questioned, detained, or pressured to sign documents, stand your ground, assert your rights, and seek legal advice.

For more information about your rights and responsibilities as a lawful permanent resident or if you need legal advise contact our attorneys at Tancinco Law, P.C at (415)397 0808 or email us at law@tancinco.com or visit our website at www.tancinco.com

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Applicants With ‘USCIS Denials’ May Be Put In Removal Proceedings

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A person who is unlawfully present after his application, petition or request for an immigration benefit is denied may find himself in removal proceedings and eventually may possibly be deported. The U.S. Citizenship and Immigration Services (USCIS) released last week their two new policies with regard to the handling of denied applications and petitions for those seeking immigration benefits. These policy memos (PM-602-0050-1 and PM-602-0161) are referred as updated guidance to referring cases to ICE and issuance of Notices to Appear.

How are these new policy memos going to be implemented? What impact will these have on those seeking immigration benefits?

Paul entered the United States using a visitor visa. He sought an extension of his stay by filing an Application to Extend Status (I-539) because he was invited to speak in a conference on a date which was beyond his authorized stay. Paul continued to reside on a visitor visa in the U.S. even after his authorized period of stay hoping that his application will be approved and he will not lose status. Unfortunately, USCIS denied his application. Under the new policies, Paul will be put in removal proceedings because he is now in unlawful status.

Those seeking extensions of H1B visas and whose requests were denied may also suffer the same fate as Paul. Under the new policy, USCIS may issue NTAs and put those with denied petitions in removal proceedings.

There are thousands of applications and petitions filed with the USCIS by those who are present in the United States. They may be seeking to avail of some immigration benefits like an extension of non-immigrant stay, change of status, extension of working visas or adjustment of status from non-immigrant status to that of a lawful permanent resident. Most of the time these applicants, if they meet the eligibility requirements are approved and issued the requested valid status. However, with the recent policies, in the event the application or petition is denied, USCIS may issue a Notice to Appear and put the applicant in removal proceedings.

Other than cases of those unlawfully present whose application or petition are denied, the following categories of cases are also impacted by the new policies:

  • Cases where fraud or misrepresentation is substantiated and/or where an applicant abused any program related to the receipt of public benefit
  • Criminal cases where an applicant is convicted or charged with a criminal offense which is a ground of removability
  • Cases in which N400 or an Application for Naturalization is denied based on good moral ground or a criminal offense

These USCIS new policies will result in more cases being filed in removal courts. With more than 700,000 cases pending in immigration courts nationwide, additional filings of cases based on these USCIS policies will only make the backlog severe. The ICE is not the only agency involved in enforcement of immigration law. The USCIS, which used to be the agency that handles immigration benefits, has now been turned into an enforcement agency as well. With this additional role, the delay in adjudication of petitions is expected to happen impacting thousands of adjustment of status and naturalization applications.

With the ever-changing policies evolving at a very fast pace, it would be prudent for a prospective petitioner or applicant to have a serious discussion about his case with a trusted legal counsel. One must be able to assess the varying legal options that may be available to attain the same result without risking removal. Or perhaps one must have his case examined on whether it is even timely or worth pursuing an application or a petition with the USCIS. During these critical times and when it comes to immigration, there is no substitute for due diligence.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw.)