Coming Home Again – What Rights Do Lawful Permanent Residents Have When They Return to the United States?
Lawful Permanent Residents of the United States (commonly known as ‘green card holders or LPR’s) are entitled to certain due process rights, including rights to a hearing before their permanent resident cards can be confiscated. Due to recent reports of CBP (U.S. Customs and Border Protection) inspections of inbound travelers’ electronic devices, social media accounts, and the like, it is good to refresh one’s knowledge relating to the rights of lawful permanent residents and U.S. citizens upon requesting admission at U.S. air and land ports of entry.
Permanent residents of the United States are subject to screening and questioning regarding whether they will be treated as “returning residents” or as “arriving aliens”. Returning residents will be granted admission to the United States seeking formal admission so long as they have not –
- Abandoned or relinquished their permanent resident status
- Been absent from the United States for a continuous period of more than 180 days
- Engaged in illegal activity after having departed the United States
- Departed from the United States while under legal process seeking removal of the alien from the United States, including removal (deportation) proceedings under the Immigration and Nationality Act and any relevant extradition proceedings
- Committed an offense relating to criminal and related grounds of inadmissibility unless a waiver of inadmissibility has been granted; or
- Attempted to enter at a time or place other than as designated by immigration officers or have not been admitted to the United States after inspection and authorization by an immigration Officer (INA 101(a)(13)(C).
Government Obligations in Proving Abandonment
Permanent residents alleged to have abandoned their U.S. residence have the right to a hearing before an immigration judge. It is not uncommon for U.S. Customs and Border Protection officers to try to convince a permanent resident that their absence from the United States resulted in an automatic abandonment of their residence, and they will urge them to sign a formal ‘Record of abandonment of lawful permanent residence status’ (Form I-407). However, even given execution of the abandonment form, the government must still prove the abandonment in a formal proceeding. It must prove by clear, convincing, and unequivocal evidence that abandonment has occurred, and a formal order of removal has been issued and has become final. A lawful permanent resident always has the right to request a hearing before an immigration judge for a final determination regarding their ability to maintain their permanent resident status.
Electronic Devices and Social Media Accounts at The Border
A policy memo issued by CBP in 2009, which remains in effect, states that all electronic devices, including those belonging to U.S. citizens, can be searched at a port of entry ‘without individualized suspicion’. There are rare exceptions to this rule, which applies to privileged material -such as attorney-client communications- that might be subject to special handling, and which require approval from CBP Associate or Assistant Chief Counsel. The Supreme Court has also upheld this rule, despite 4th Amendment constitutional protections, in Carroll v. United States (267 U.S. 132(1925), and ruled that it is reasonable to conduct border searches without warrant due to national security interest. While the Supreme Court determined in Riley v. California, 134 S. Ct. 2473 (2014) that police may not search for and seize the digital contents of a person’s cell phone or electronic device incident to an arrest without obtaining a search warrant, the ruling doesn’t apply to arrests occurring at the border. The ruling applies only to arrests occurring in the interior of the United States.
CBP officers have also been reported requesting log-in information for private social media identifiers so that they can review the traveler’s public information and private social media accounts and messages. The CBP electronic device search has not been updated to address these situations, but it is likely that CBP may view this information as falling in the ‘border search exception’ to the 4th Amendment. More information relating to the search of electronic devices may be found here: Inspection of Electronic Devices Tear Sheet | U.S. Customs and Border ProtectionU.S. citizens who refuse to consent to searches may be subject to detention, arrest, or released with CBP holding the device in question.
Right to Counsel
U.S. Customs and Border Protection regulations uphold its belief that there is no right to counsel during the inspection and admission procedure, although attorneys are at times permitted counsel at a deferred inspection office.
On February 28, 2025, USCIS issued a Policy Memorandum related to the issuance of Notices to Appear (NTA’s) in cases involving inadmissible and deportable aliens, (https://www.uscis.gov/sites/default/files/document/policy-alerts/NTA_Policy_FINAL_2.28.25_FINAL.pdf) in which it emphasized that all USCIS employees, including those employed by U.S. CBP are to be guided by the document which no longer exempts classes or categories of removable aliens from potential enforcement, which would also affect returning lawful permanent residents, including conditional permanent residents requesting admission for reentry to the United States. Should CBP detain and hold the permanent resident until Immigration and Customs Enforcement (ICE) takes custody of the individual pending a bond hearing, the right to an attorney would attach at that time.
Conclusion
When requesting admission to the United States, lawful permanent residents should anticipate in advance any questions regarding any unusual length of absence from the United States, permanent home address and employment in the United States and should further be able to evidence the strong ties that they do have to ensure a smooth transition and return home. Consulting with an attorney to see if there are other issues that might arise, including arrests or extended absences, is advisable in certain situations.
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