Discussion Points for Punto Legal- June 22, 2016
2. Sex. Last week I talked about sex. That’s right sex. We talked about Colorado’s harsh sex offenders laws. In particular, we talked about the age of consent, that is, the age at which it is safe to have sex with a young woman or man. That age is 18.
Too often Latino men get into big trouble by having sex in Colorado with girls who are too young. I realize there are big major cultural differences between Mexico and El Salvador, on the one hand, and the United States, on the other. For example, I understand that girls get married at age 14 in some parts of Mexico. If you have sexual relations with a 14-year-old in the U.S., you are going to jail.
Last week, we talked about Colorado’s sex offender registry. If you are convicted of a sex crime, you must register as a sex offender. You get your name, address, and photo put up on the internet. This in turn makes you an immediate target for ICE, if you are undocumented.
Also any conviction of a crime involving sexual abuse of a minor will get you deported if you are a permanent resident.
Colorado’s policy about sex offenders is lifetime supervision. If you are convicted of any felony sex offense and sent to prison, virtually all the sentences carry a sentence of up to life in prison. Suppose a man is convicted of sexual assault on a child because he touched his 12-year-old step-daughter’s breasts. Suppose further the trial judge gives him two years in prison. That sentence is two years to life in prison by operation of the law. You do not get out of prison until the people who handle sex offenders decided to let you out. They won’t let you out until you have been treated. And if you are undocumented, they won’t treat you. This is sex offender hell.
Let me point out another feature of Colorado sex offender law. Suppose a 21-year-old man meets a 15-year-old girl at a dance. They have a great time at the dance and start dating. The girl tells him she is 18. She even has a fake ID that shows she is 18. The dating leads to sex. The girl’s mother finds out about it and calls the police. The police investigate. Then they talk to the young man. He does not see a problem so he readily tells the police, Yes, I had sex with my girlfriend 11 times. Is this a problem? Yes. It is a deportable felony crime of sexual assault on a child. Even if you honestly and reasonably believe that the girl is of legal age, you are guilty of having sex with an underage girl. These laws are designed to protect young women. Period.
2. Abandonment of Permanent Residence. If you are a resident and have been gone from more than one year, you can expect to be questioned about whether you have abandoned your residency when you return to the U.S. How long you have been outside the U.S. is a major factor, but it is not the only one. Immigration authorities will consider your intent; employment abroad; U.S. business affiliations; ownership of a home in the United States; payment of U.S. taxes; community ties developed before the departure; maintenance of a bank account, and U.S. residence of other immediate family members. Evidence that the LPR has abandoned residency can include long or frequent absences from the United States; disposing of property or terminating a job in the United States before leaving; family, property, or business ties all located abroad; working for a foreign employer, voting in a foreign election, and failure to file U.S. income tax returns.
Employment outside the United States by a U.S. employer would not likely be considered evidence of abandonment of LPR status.
If you think you may be outside the U.S. for more than one year, get a re-entry permit before you travel. This reentry permit may be obtained by filing Form I-131 with the USCIS before leaving. You can stay outside the U.S. for up to two years and not be regarded as having abandoned your residency with a re-entry permit.
Permanent resident aliens are entitled to a hearing as to whether they have abandoned their LPR status when returning from a lengthy absence. If it is requested, they will be paroled into the country for that purpose. The government has the burden of proving by clear, unequivocal, and convincing evidence that the LPR’s status has changed. In those cases, an immigration judge will hear testimony and weigh the evidence as to whether abandonment has occurred. An LPR retains that status until a formal determination has been made.
If you have been outside the U.S. for over one year, you can simply argue your case to Customs and Border Protection if they raise a question of abandonment. You can also file Form DS-117, Application to Determine Returning Resident Status, along with a fee of $275, with the U.S. consulate.
The consulate will conduct an interview and make a determination as to whether the LPR has abandoned resident status.
