What Ma Ying-jeou Isn't Telling

The following translation is an account of an interview with Robin Winkler, a naturalized Taiwanese citizen and former EPA commissioner, founder of Taiwan's Wild at Heart Legal Defense Association, and currently member of the board of supervisors of the Green Party Taiwan. The Chinese original appeared in the March 18th edition of the Liberty Times. [Explanatory notes in square brackets].

Lawyer (Attorney of Foreign Legal Affairs) Robin J. Winkler said yesterday that based on the U.S. State Department's Foreign Affairs Manual, travel to the U.S. on a non-immigrant visa does not necessarily mean that one has abandoned lawful permanent residence status. Winkler, a naturalized Taiwanese citizen, said that he did not want to see a president elected who could run off to the U.S. at any time. He argued that to show respect to voters, [now president elect] Ma Ying-jiu has a duty as a candidate to produce evidence that he has abandoned his lawful permanent residence status and should not play semantic games.

Winkler said the Ma camp's assertions that a U.S. lawful permanent resident loses that status automatically after leaving the U.S. for a few years was simply wrong. [The U.S. Department of Homeland Security takes the position that residency has been abandoned when an LPR is out of the U.S. continuously for more than one year. 8 CFR § 211.1(a)(2).] Ma has cited this regulation as proof that his LPR status has been abandoned. However the courts and the Board of Immigration Appeals have consistently taken the view that intent to relinquish permanent residency is the standard, not the length of time that the LPR has been out of the country. For example, in Hana v. Gonzales, 400 F.3d 472 (9th Cir. 2005) an LPR had permanent job, real property, and immediate family in Iraq and never worked, paid taxes, or procured a bank account or driver's license in the U.S., and was absent for the vast majority of four years, but her trip was nevertheless determined to be temporary in nature because her failure to put down roots was due to her desire to help her family safely flee Iraq and to take care of her terminally ill mother-in-law and her return was fixed by an early event--the safe emigration of her family from Iraq to the U.S. Based on this reasoning, the court determined that the LPR had not abandoned her LPR status despite having been out of the US for more than one year. ] According to U.S. immigration law, there must be an expression of fixed intent to abandoned permanent residency. For this reason, Ma needs to fill out the I-407 form. He cannot just say that he has abandoned LPR status.

Moreover, it is also incorrect to claim that because Ma has been issued B1/B2 non-immigrant visas or used this visa, his green card has expired. Volume 9 of the U.S. Foreign Affairs Manual states that consular officers may, at their discretion, issue non-immigrant visas [such as B1/B2 visas] to applicants with LPR status if the applicant needs one. Consular officers may not refuse to issue a non-immigrant visa solely because the applicant has LPR status, nor can consular officers require a visa applicant to relinquish her green card as a condition to issuing a non-immigrant visa. Consular officers [who work for the State Department] do not have the authority to determine whether a person has lawful permanent residence. The U.S. Citizenship and Immigration Services (USCIS) [an agency under the Department of Homeland Security] reserves this authority to itself.

Winkler emphasized the importance of citizen participation in democracy. A candidate who is faced with questions from voters should use all possible subjective and objective means to make the people understand. This is a duty. Ma said [last week after Winkler and another lawyer placed an ad in the China Times saying that Ma's permanent residency was still valid] that Winkler was an environmentalist, not an expert on immigration law. Winkler said that this means that if you are not an expert recognized by Ma, you have no right to speak. Or that as long as Ma knows, others don't need to know. For Winkler, Ma's comments were from another era and represent exclusionary, elitist thinking. If he becomes Taiwan's president, said Winkler, he has set the worst possible example for government officials who would really prefer that the people not know what they are doing.

Winkler also said that many people were concerned about whether Ma is a U.S. permanent resident who could leave Taiwan for another country at any time. The real issue though, said Winkler, is why Ma won't let everyone know the truth. Proving that Ma does not have lawful permanent residence status is simple--sign a power of attorney and have a respected third party apply to the U.S. government for proof that he has abandoned LPR status. That person can go to the USCIS and copy the information he needs. Access can be applied for today and received tomorrow. Now would be a good time. It would stop this waste of social resources and be more environmentally friendly. Is this so hard for Ma?

And after the election where Ma won by over two million votes. Ma says he wants to visit the U.S. Well the good news Mr. Ma is that the U.S. can't refuse your entry unless you signed that form, or until a court rules that you no longer have the intent to live permanently in the U.S. If you haven't paid taxes or have other outstanding issues, you may face some issues with the U.S. Internal Revenue Service, but things like getting arrested for U.S. tax evasion don't matter too much when you have friends in high places.