3

Suppose a green card holder arrived on a flight to the US, but at some point during the flight, lost their green card and therefore could not present it to CBP. It seems that this person would be an inadmissible alien since they fail to meet the documentary requirements under INA 212(a)(7).

There are some ways out of this situation: the inspecting officer could waive the documentary requirement (INA 211(b)), grant deferred inspection (8 CFR 235.2), or permit the alien to withdraw their application for admission (INA 235(a)(4)). However, all of those require an exercise of discretion.

Therefore, it appears that if DHS is really determined to deport the arriving alien in this situation, they can refuse to grant a waiver, refuse to grant deferred inspection, refuse to grant withdrawal, and place the alien in removal proceedings. In removal proceedings, the immigration judge could similarly deny all forms of relief and issue an order of removal. The alien would then lose their LPR status and be banned from the US for 5 years.

Legally speaking, are there a way for such an arriving alien (a returning LPR, who has previously complied with all immigration laws, has not abandoned their residence, and has merely lost their green card on the way to the port of entry) to avoid deportation that does not require a favourable exercise of discretion?

| improve this question | |
2

Yes — such a person can in theory be deported. There is no way to avoid deportation without a favourable exercise of discretion.

In practice, unless the CBP officer is having a really bad day and really doesn't like the alien's face, they would likely grant such a discretion: establishing that the alien is really who they claim to be is easily done by looking up the databases. After all, the physical green card is just a copy of the database record, merely an evidence of PR status, not the bearer of it.

| improve this answer | |
  • 1
    I think your claim about US citizens is incorrect. If an arriving individual claims to be a citizen, but the inspector is not satisfied that this claim is valid, the individual is entitled to review before an immigration judge (8 CFR 235.3(b)(5)(iv)) at which point they would have the opportunity to prove their claim to citizenship. A person thus determined to be a citizen could not then be removed. Even if the inspector were to illegally coerce the individual into departing the US, if they are actually a US citizen then they could not be prevented from returning with a new passport. – Brian Jan 4 at 21:18
  • This even applies to arriving aliens falsely claiming US citizenship - they could in theory get in front of an immigration judge in this way. However, such an individual would just be deported after the hearing, and permanently banned as a consequence of the false claim. So, it's no surprise that we don't see many people doing this. – Brian Jan 4 at 21:22
  • 1
    @Brian fair comment, I've removed the remark re US citizens in similar situation. – Greendrake Jan 4 at 22:00
  • 1
    @phoog Why? Aliens are everyone who is neither citizen nor national. INA 212(a)(7), on the face of it, applies to all aliens. – Greendrake Jan 5 at 1:43
  • 1
    @phoog I think the audience will appreciate if you point to the exception. I can't see any that applies. – Greendrake Jan 5 at 9:10

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.