by Stanley Mailman and Stephen Yale-Loehr**

How big a deal is it to attain the status of lawful permanent resident (LPR) in the United States, or to lose it? Whether a foreign person still has his lawful residence (often called "green card" status) can be a critical call. Hanging on the outcome is whether the individual has the right to live and work in the United States, to enjoy various government benefits, and to hold certain public offices. A "yes" decision can also mean that he will be taxed on his worldwide income or on his estate. And in United States v. Yakou, 428 F.3d 241(D.C. Cir. 2005), it meant that the defendant, an Iraqi citizen, was not subject to prosecution as a "U.S. person" under a federal statute that controls the import and export of certain defense articles and services, because the court determined that he had earlier abandoned his LPR status.

The Yakou Case

 The United States indicted Sabri Yakou for engaging in certain brokering activities in violation of the Arms Export Control Act ("AECA"), 22 U.S.C. § 2787(b)(2), (c), and its implementing regulations, the International Traffic in Arms Regulations ("ITAR"). Under AECA, persons who engage in such brokering activities must register and obtain certain licenses. Those subject to these requirements, according to ITAR, at 22 C.F.R. §§ 120.15, 129.3(a), include "[a]ny U.S. person," meaning one "who is [a] lawful permanent resident as defined by 8 U.S.C. 1101(a)(20)." That provision, known to immigration lawyers as section 101(a)(20) of the Immigration and Nationality Act (INA), defines "lawfully admitted for permanent residence" as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed."

 Yakou, born in Iraq and a longtime resident of the United Kingdom, followed his children to the United Stated in 1986 to live and work on a temporary work visa. He became a lawful permanent resident in 1989. The thicket the court had to penetrate was whether that status had "changed" and, if so, whether it had changed before November 2000, when the alleged crime began. Not only are the facts complex, the law is far from clear.

In 1993, because he believed he was ill-treated by federal agents, Yakou decided he could no longer live in the United States. He so advised his family and went back to London and primarily resided there until 1998. He then returned to Iraq, where he lived and worked until he was lured to the United States for prosecution.

Since 1993, Yakou returned to the United States on fewer than ten occasions, primarily to visit his family. Each visit lasted less than three weeks. To enter the country, Yakou used his green card until January 2000, when he apparently lost it. On his last three visits to the United States he was admitted only on his British passport (presumably as a nonimmigrant visitor). He was never ordered deported or refused entry to the United States and never filed a document that formally expressed an intention to relinquish his green card status. He last filed a federal income tax return in 1992.

To carry its burden of proving that Yakou was a "U.S. person," the government argued that his LPR status had never changed, as such a change would have needed a formal administrative action (like an exclusion or deportation order), absent here. But the court of appeals, agreeing with Yakou, held that an LPR can abandon his status, and that Yakou's status changed when he left the United States in 1993 to take up residence elsewhere. The court relied heavily on a long line of opinions by the Board of Immigration Appeals, a creature of the Attorney General, although noting they were in part dicta.

Matter of Lok

In Matter of Lok, 18 I. & N. Dec. 101, 105 (BIA 1981) (cited in Yakou), the Board held that it would "deem[] the lawful permanent resident status of an alien to end with the entry of the final administrative order of deportation." But it added that "[o]ther circumstances under which lawful permanent resident status may change include: . . . when [one] relinquishes such status, intentionally or unintentionally." Id. at 107 n.8. In Matter of Duarte, 18 I. & N. Dec. 329, 332 n.3 (BIA 1981), the Board repeated that LPR status could be lost "through abandonment, intentional or unintentional."

The usual cases of unintentional abandonment arise in exclusion, now "removal," proceedings, where the government seeks to deny admission to the green card holder on the ground that he has abandoned his status as a lawful permanent resident. Technically, the government charges that the applicant for admission is an immigrant who lacks an immigrant visa or other valid entry document in that his green card (or reentry permit) is no longer valid. See INA § 212(a)(7)(A), 8 U.S.C. § 1182(a)(7)(A). And that is so, according to this analysis, because the individual is not "returning to a "lawful unrelinquished permanent residence," a requirement for green card entry. See INA § 211, 8 U.S.C. § 1181; 8 C.F.R. § 211(a). See, e.g., Gary Endelman, You Can Go Home Again-How to Prevent Abandonment of Lawful Permanent Residence, 91-4 Immigration Briefings (Apr. 91); Stanley Mailman, Loss of Citizenship or of Lawful Permanent Residency, in Tenth Annual Immigration & Naturalization Institute (PLI 1979). But the government must establish that the individual's status has changed by "clear, unequivocal and convincing evidence." Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997) (citing the leading case, Woodby v. INS, 385 U.S. 276, 277 (1966), and finding such evidence). The critical element in deciding that the individual has maintained his permanent residence is a finding that he intended to return to the United States within a relatively short period of time fixed by some early event. Such a finding was made recently in Hana v. Gonzales, 400 F.3d 472 (6th Cir. 2005) (attributing temporary delay in putting down U.S. roots to a "brutal" Iraqi regime) (citing Woodby and distinguishing Singh). Whether the individual had the subjective intent to abandon his LPR status is beside the point, according to Yakou.

Matter of Kane

Although unnecessary to its analysis, the Board in some of its precedent decisions has noted that the individuals ordered excluded had already lost their LPR status by engaging in an abandoning act. See, e.g., Matter of Kane, 15 I. & N. Dec. 258, 265 n.3 (BIA 1975) (noting that Kane's LPR status "ha[d] already changed because her trip or trips [abroad] were not temporary" and that "if any of her absences have been other than temporary in nature, she has lost [her LPR status] and would not now have that status"). See also Matter of Montero, 14 I. & N. Dec. 399, 401 (BIA 1973) ( observing that the LPR had lost her status when she departed without a fixed intention to return to the United States). But these comments were unnecessary to those decisions. Kane was excludable because she was not then a returning resident coming from a temporary visit abroad, and Montero was deportable as a simple overstay. The Yakou court, however, was also able to cite one case where earlier abandonment was critical to the decision: Matter of Abdoulin, 17 I. & N. Dec. 458 (BIA 1980). There, the Board reviewed the appeal of a petition denied for the wife of an alleged LPR who had been absent from the United States for eleven years. Even though the petitioner's LPR status had never been ruled invalid, the BIA denied him this benefit of status, implicitly holding that because he no longer lived in the United States his status had already "changed."

Ahmed v. Ashcroft, 286 F.3d 611, 613 (2d Cir. 2002), is similar to Yakou. Although re-admitted as an LPR, Ahmed was held deportable for having earlier abandoned his LPR status during a nine-year stay abroad. That Ahmed may never have intended to abandon his LPR status, the court found immaterial. What counted rather was objective evidence that while abroad, "he lacked the requisite intent to return to the United States within a relatively short period of time." Id. at 613. Similarly, the Yakou court found the defendant's admissions to the United States as an LPR immaterial to the consideration of his LPR status, given that he had earlier abandoned that status when he left the United States to live in the United Kingdom.

The cases cited above all suggest instances of involuntary abandonment, that is, while the individuals meant to leave the United States and live abroad, they were not keen on losing their LPR status. But some people may want to part with their green card, often for tax reasons, and are in a hurry to do so. As Yakou notes, one way of giving up green card status is to file Form I-407, "Abandonment of Lawful Permanent Resident Status," which allows the individual to indicate whether he is seeking to surrender the status or has already abandoned it. It is usually filed with the green card itself at a U.S. consular office, an event that can fix the termination of the tax status of "resident alien."1

Yakou's Importance

What may be most significant about Yakou is that it both makes the determination that LPR status is lost outside of an immigration forum, and fixes the date of loss at some earlier time. Aboudin and Ahmed also had to find that an individual had lost his LPR status before the ultimate issue arose - in Aboudin whether he still had the status needed to file for his relative; in Ahmed, whether he was still an LPR when he last entered the United States. But both cases were administratively decided in an immigration forum, by administrative officials who deal every day with the concept of LPR status and its significance.

The eventual reach of Yakou is unclear. In the case itself, a criminal court's authority to decide that someone was outside the ambit of the statute because he had earlier abandoned his LPR status operated to the defendant's advantage. But there are other statutes under which the loss of LPR status could be catastrophic to the individual. Consider the food, medical, and educational benefits that lawful permanent residents, like U.S. citizens, share, not to speak of social security eligibility. And there are many civil service jobs, public licenses, and other opportunities limited to U.S. citizens and LPRs. Such situations may not arise often, as few agencies administering these services have the inclination or means to look beyond the green card itself. But many LPRs do go abroad for indefinite periods on business or jobs. Under Ahmed and Yakou, they face, at least theoretically, the continuing threat of a challenge to their green card status, as well as a loss of benefits in another forum, even after their readmission to the United States.
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* This article originally appeared in the February 27, 2006 issue of the New York Law Journal. Copyright (c) 2006 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman is counsel at Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer, LLP in Ithaca, N.Y., and teaches immigration law at Cornell Law School.

1 See 26 C.F.R. § 301.7701(b)-1 (amplifying the provisions of IRC § 7701(b), 26 U.S.C. § 7701(b) that afford a bright-line definition of the tax status of "resident alien," and adding the I-407 to the statutory means of terminating that status - a judicial or administrative determination ending the status of lawful permanent resident). See also Stanley Mailman, How Immigration Law Concepts Clarify, Mesh With "Resident Alien" Definition, 65 Journal of Taxation 26 (1986) (prior to the regulation discussing the impracticality of inviting an administrative order of exclusion or deportation and suggesting possible alternatives).