Total Pageviews

Monday, August 17, 2015

IMMIGRATION LAW - What defines a brief, casual, and innocent departure from the US? Or, how to avoid being deported for breaking continuous residency.

We just filed a response brief for a client that had left the country when he was under TPS (temporary protected status). His original country of origin was El Salvador. The problem, of course, is that when you are in the US under TPS, you are not permitted to depart without first completing an I-131 (advanced parole). The term of art in immigration parlance is, "continuous residency." Like many "specialty status" situations, departure without prior permission results in termination of status and deportation. However, there is an out. Those absences that are, "brief", "casual", and "innocent" may be excluded from consideration of a break in continuous residency.

Definitions: (from 8 CFR §244.1)

Continually Physically Present means actual physical presence in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences as defined within this section.

Continuously Resided means residing in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual and innocent absence as defined within this section or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.

What constitutes a defense to a violation of the continuous residency requirement? This is true of both TPS and other residency requirements for various applications through USCIS (for example, citizenship applications, etc.). Under a ruling by the AAO (Administrative Appeals Office - the office responsible for adjudicating appeals related to most forms and USCIS based decisions), the following definition is the answer:

[T]he phrase brief, casual, and innocent absence, as defined in 8 C.F.R. 3 244.1, means a departure from the United States that satisfies the following criteria: (1) Each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence; (2) The absence was not the result of an order of deportation, an order of voluntary departure, or an administrative grant of voluntary departure without the institution of deportation proceedings; and (3) The purposes for the absence from the United States or actions while outside of the United States were not contrary to law.

(AAO Decision, December 14, 2005, EAC-03-30-51246)

When writing a brief in support of an individual who has traveled outside of the United States during a period of required "continuous residency," be sure to cite to the AAO's factors, one-by-one, and how they relate to your client. Additionally, provide evidence of the short duration of the trip, the nature of the trip, and individuals who can confirm that the travel was indeed, brief, casual, and innocent. Mere testimony or sworn statements of your client will not be enough.

Do you have an immigration question? Let us help! Call us at 703-402-2723 or email admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

No comments:

Post a Comment

Share your thoughts with us!