Here Today, Gone Tomorrow: “Nullifying” Lawful Permanent Resident Status

Lawful Permanent Resident (LPR) status is the status awarded to immigrants who have permission to reside permanently and work in the United States. For many, it is a stepping stone to U.S. citizenship. Section 101(a)(20) of the Immigration and Nationality Act (INA) defines LPR status as “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.”

In several instances, either through alleged fraud on the part of the immigrant or mistake on the part of the government, the government has granted an immigrant LPR status and then alleged years later that the individual, now residing in the United States under the belief that he or she is an LPR, was never in fact an LPR because of the original error. Thus, despite the fact that these individuals applied for and received LPR status through the proper channels, they have effectively had their status “nullified.”

This result stems from the Board of Immigration Appeals’s (BIA) interpretation of the word “lawfully.” The BIA has held that the word “lawfully,” as it appears in section 101(a)(20) of the INA, means in compliance with all procedural and substantive requirements of the INA. This interpretation has led the BIA to conclude that an immigrant who received LPR status through error or fraud was never an LPR and thus never possessed the special legal protections awarded to LPRs in this country.

It may seem to many that it is fair to revoke the LPR status of an individual who committed fraud to obtain that status. This Note does not disagree. The true injustice of the BIA’s interpretation is two-fold. First, it is an extremely harsh action to take against those immigrants who obtained their LPR status through a government error. Often, these innocent individuals had no way of knowing that they were not in compliance with the law and relied on their lawful status for years. Second, this interpretation allows the government to nullify an immigrant’s LPR status prior to any official hearing on the matter, merely by alleging that the initial application was based on fraud or mistake. This can impermissibly switch the burden of proof in removal proceedings from the government to the immigrant and deny the immigrant certain forms of relief for which he or she would otherwise be eligible.

Several circuit courts have upheld the BIA’s interpretation of LPR. These decisions, however, have thus far ignored the effects such an interpretation has on the burden of proof in removal proceedings. Additionally, the BIA’s interpretation directly contradicts other provisions of the INA and is inconsistent with the BIA’s interpretation of “lawfully” in other provisions. This Note argues that in examining the INA’s removal procedures as a whole, it is clear that Congress intended for anyone who has been granted LPR status to retain that status until its official termination in an immigration court proceeding, regardless of whether it was obtained in compliance with all substantive provisions of the law. The remaining courts to examine this issue should reverse the BIA’s interpretation of LPR for the reasons advanced here.

Note | View PDF | Appears in Volume 56, Issue 2

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