Defense from Removal based on Abandonment of Permanent Residence
If your client was stopped at a point of entry and stripped of his green card based on abandonment of his LPR status, here is what you need to do.
Burden of Proof is on the GovernmentThe government has to prove by clear, unequivocal and convincing evidence that your client intended to abandon his US permanent residency.
Factors considered by the court in determining abandonment intent.Courts consider the following main factors:
Ties with the US: employment, school, taxes, bank accounts, assets, rent or mortgage payments, family. Compared with similar connections in the foreign country where the client resided before entering the US.
If the facts of the case are unfavorable to your clientTurn them around into favorable facts. Show any and all equities you can find in your client's situation. During the trial, even when most of the evidence appears to be stacked against you, including your client's self-damaging testimony, be creative and present the bad facts in a favorable light and turn them into good facts for your client.
At the Immigration Court HearingDuring Master calendar hearing - deny all charges, incuding that the client is an arriving alien. When it comes to the individual hearing, as mentioned above, even if your client is looking bad on the stand, you can still turn it around in your favor. Use common sense and logic when analyzing the client's intent to abandon. Be warm and emotional - big chance that the judge will be empathetic.
Your closing argument plays a HUGE role - it can change the course of the entire trial.
Prepare a lot so you have every argument and every piece of evidence in your head.
Having the burden, the government usually goes first and conducts a direct examination of your client. Make notes of the sticky points - the government attorney's questions and your witness's answers that were damaging to your case - and address them in your cross in order to clarify, explain bad fact and make those points less damaging or even favorable to you.
Do Not Miss a Chance to Challenge the TechnicalitiesDon't miss your chance to challenge the procedural violations when it reasonably makes sense. Do it in the very beginning as a surprise to the government attorney. For example, move to suppress the government's evidence based on due process violations. Even if the judge denies it, you will shatter the unwaivering confidence of the government's attorney right from the start.
Object based on relevance and be ready to explain objections. The immigration court hearing is much less formal than a civil court one. But still, basic civil procedure rules apply, so you will win the judge's respect by acting formally and respectfully.
Contact me if you have any questions regarding relevant statutes and case law, or have an abandonment case that needs to be tried in court. Irena Mykyta, [email protected], tel. 646.884.3319.