Retaining Green Card of a Child of a US Citizen Living Overseas

[Anar]

Hi everybody. Both me and my spouse naturalized in June 2016 and left the USA, to work overseas. We applied for a US passport for our child at the Consular Section of the USA Embassy in the country we are now residing. The response from the US Embassy was that a child whose parent naturalizes in the United States after the child has left the country as an LPR, does not automatically naturalize (Child left US prior to our oath ceremony). The child would have to return to the United States as an LPR. Citizenship would then accrue automatically once the child was in the United States as an LPR in the legal and physical custody of a citizen parent, while under the age of 18. Therefore, a U.S. passport could not be issued and my application was denied. Question to immihelp community:

We are planning to return to the United States just to obtain a US passport for my child, but this will happen when the child will be absent for more than a year. Can this be a problem at the border check point once we arrive in US?

Just to summarize: Both Parents are Naturalized US Citizens. Entering USA with a 6-year old child who is a Green Card Holder, after 12 months of absence. I know it sounds weird, but can they deny child's entry to US because she abandoned permanent residency?

Thank you

[newacct]

Yes, of course they can deny the child entry. Technically the green card is only valid for re-entry after an absence of less than one year, although they have discretion to admit the child anyway. So they have good reason to deny entry to the child. But it is also very possible they will decide to admit the child because they think the child had ties to the US due to having parents naturalized in the US, or admit the child with a warning if it is the first time the child was outside the US for more than a year and it wasn't much over a year. Or, they may even think that the child became a citizen upon seeing the child's green card and the parents' US passports (even though the child didn't become a citizen in this case because the child wasn't in the US when the parents naturalized; but the officer may not know that, or may not know the rule) and just admit the child mistakenly thinking they are already a US citizen (you should always represent the child as a permanent resident and not a citizen, however; but if the officer has a misconception that is their problem).

But even if they deny the child entry, if you refuse for the child to give up the green card voluntarily, they will still parole the child and initiate removal proceedings against the child, where removal proceedings is the opportunity for you to argue to the immigration judge that the child did not abandon residence. (Think of removal proceedings as sort of an "appeal" of the immigration officer's decision, if you will.) Only if the immigration judge removes the child do they lose permanent residency; if the immigration judge agrees with you, the child is admitted as a permanent resident (and becomes a citizen). So it's not like being denied entry is the end of the road; you still have recourse.