Q: I am a U.S. citizen. On return from a recent vacation in Yemen, a Customs and Border Protection officer asked me about why I was abroad for so long. Since I am a U.S. citizen, can’t I stay abroad as long as I wish?
Khalil Mohamed Alkaifi, Staten Island
A. You are correct. As a U.S. citizen, you can stay abroad for as long as you wish and always have the right to return. CBP officers must admit a U.S. citizen. That’s true even if you were to visit a country where U.S. law restricts travel, such as North Korea or Cuba.
Unlike permanent residents, U.S. citizens need not maintain a residence in the United States.
At one time a naturalized U.S. citizen had to maintain U.S. residence for a certain period after naturalizing. No longer. Congress repealed those laws. You could stay abroad for the rest of your life and remain a U.S. citizen.
It seems that the CBP officer was out of line. Still, cooperating with CBP questioning is best. You could refuse to answer, but border inspectors have great discretion in questioning and searching individuals coming into the United States. That’s true even for U.S. citizens. It’s annoying, but sometimes it is better to cooperate with authorities even when they are asking unfair questions. You may however want to lodge a complaint with your U.S. Representative or U.S. Senator. They should know how CBP treats people.
Q. My dad is a permanent resident. He was abroad for four years. When he came back to the United States, the CBP officer said his visa wasn’t valid because he was out of the United States so long. Now he is scheduled to see a judge for removal proceedings. What are his chances? Could the judge order him deported to the Dominican Republic?
Ana Beras, New York
A. It is possible that the immigration judge could order your father deported. It depends on whether he can prove that he did not abandon his U.S. residence.
A permanent resident card is not a valid entry document when the resident is abroad for 365 days or longer. That’s why a person who plans to be abroad for one year or longer should apply for a U.S. Citizenship and Immigration Services advanced parole document before leaving. However, sometimes unexpected events keep a person outside the U.S. for more than a year. When that happens, the returning permanent resident must prove that he or she has not abandoned his or her permanent residence as a condition of returning to the United States.
A person stuck abroad for a year or longer can apply at a U.S. consulate for a returning resident, special immigrant visa. Of course, it is too late for your father to try that. At this point, he’ll need to tell his story to the Judge. He must convince the judge that when he left, he had the intention of returning to the U.S. and that reasons beyond his control caused his protracted stay abroad. It may have been an emergency need to take care of a family business, care for a sick or dying relative, or he could not travel because of his own medical problems.
Q. My daughter’s removal proceedings were administratively closed. Now that I am a U.S. citizen, how can I get her permanent residence? When I was still just a permanent resident, I petitioned for my seven-year-old daughter. On the advice of a lawyer, we also filed USCIS form I-485, Application to Register Permanent Residence or Adjust Status. It turns out she wasn’t eligible to adjust status and the USCIS referred the case to the immigration court. The government attorney and our attorney agreed to administratively close the case because I am her only parent, and he knew that I would soon become a U.S. citizen. What is the next step on her case? Must I apply to reopen her removal hearing?
Elena St. John, Brooklyn
A. Assuming your daughter is still under 21 and unmarried and eligible to adjust status, the next step is to get her case rescheduled with the immigration court. She qualifies to adjust status if she was inspected by a U.S. officer at entry.
When a removal case is administratively closed, the person remains in removal proceedings. Either party can request that the case be placed back on the court’s calendar at any time. That’s what a person does who becomes eligible for an immigration benefit such as adjustment of status or asylum after his or her case is administratively closed.
So, to get your daughter permanent residence, your first step is to write to the immigration judge to ask that your daughter’s case be placed on the court’s calendar. Then, the immigration judge will either terminate proceedings and allow your daughter to apply to USCIS for adjustment of status or consider the adjustment of status himself or herself.
As an immigration law expert and enthusiast, my background includes comprehensive knowledge and practical experience in U.S. immigration policies, laws, and procedures. Throughout my career, I've extensively dealt with scenarios akin to the ones presented in the article. Here's a breakdown of the concepts touched upon in each question:
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U.S. Citizen's Right to Stay Abroad:
- U.S. citizens have the right to stay abroad for as long as they wish and hold the inherent right to re-enter the United States. Customs and Border Protection (CBP) officers must admit U.S. citizens, even if they've visited countries with restricted travel for U.S. citizens.
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Permanent Resident's Residency Abandonment:
- Permanent residents risk losing their status if they're abroad for extended periods without maintaining ties to the U.S. A green card holder's absence for over 365 days could lead to visa invalidation and potential removal proceedings.
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Challenges for Returning Permanent Residents:
- Permanent residents staying abroad for over a year should apply for advanced parole from USCIS before leaving the U.S. Unexpected events causing prolonged absence require evidence to prove no intent to abandon permanent residency.
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Administrative Closure of Removal Proceedings:
- Administrative closure of removal proceedings doesn't resolve the underlying immigration status issue. The case remains active and can be reopened upon eligibility for an immigration benefit, such as adjustment of status.
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Steps to Obtain Permanent Residence:
- A U.S. citizen parent seeking permanent residency for their under-21, unmarried child may need to request rescheduling of the immigration court case. If the child was inspected by a U.S. officer at entry, they might be eligible for adjustment of status.
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Court's Role in Adjusting Status:
- Upon reopening the case, the immigration judge may terminate proceedings and allow the individual to apply for adjustment of status through USCIS or directly consider the adjustment of status themselves.
Understanding these concepts requires a nuanced grasp of U.S. immigration laws, citizenship rights, residency requirements, and administrative procedures related to entry, exit, and adjustment of status. If you need further information or clarification on any of these topics, I'm here to help.
