United States Court of Appeals
For the First Circuit
No. 03-2550
FARHAD KATEBI,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lipez and Howard, Circuit Judges.
Harvey Kaplan with whom Maureen O'Sullivan, Jeremiah Friedman,
Ilana Greenstein, and Kaplan, O'Sullivan & Friedman, LLP were on
brief, for petitioner.
Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, with whom Peter D. Keisler, Assistant Attorney General
and Donald E. Keener, Deputy Director, were on brief, for
respondent.
February 3, 2005
HOWARD, Circuit Judge. This petition for review of an
order of the Board of Immigration Appeals ("BIA") requires us to
consider under what circumstances a permanent resident may be
excluded from the United States for abandoning his permanent
resident status. An immigration judge ("IJ") found that petitioner
Farhad Katebi abandoned his permanent resident status by traveling
to Iran and Canada. The BIA summarily affirmed. We deny Katebi's
petition for review.
Katebi, a native and citizen of Iran, arrived in Canada
in 1989 as a landed immigrant. In 1990, Katebi's father, a
permanent resident of the United States, sponsored Katebi for
permanent resident status in this country. See 8 U.S.C. §
1153(a)(2)(B). Katebi's permanent resident application was not
approved until early 1995. Meanwhile, in 1993, Katebi applied for
Canadian citizenship.
Katebi entered the United States as a permanent resident
on January 5, 1995. He moved from Canada to Florida where he lived
with one of his brothers (who is a U.S. citizen) and worked as a
security guard. Katebi returned to Canada in March of 1995 and
received Canadian citizenship sometime in 1996. After receiving
citizenship, Katebi remained in Canada for several more months to
await the issuance of his passport, which he received at some point
in 1997. While in Canada, Katebi lived in an apartment with his
girlfriend, worked as a taxi driver, maintained a Canadian bank
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account, and purchased and registered a car. He remained in Canada
for several months after receiving the passport.
Meanwhile, Katebi's father had returned to Iran from the
United States and become gravely ill. In October 1997, Katebi
traveled to Iran to visit his father. He stayed in Iran for two
months. After leaving, he initially went to Canada to retrieve his
car before returning to the United States in mid-January 1998. Upon
returning to the United States, Katebi moved to the Boston,
Massachusetts area. Once settled in Massachusetts, he worked as a
taxi driver.
In October 1998, Katebi's father died, and Katebi
returned to Iran to attend the funeral. He returned to Boston in
late February 1999 and was interviewed by Immigration and
Naturalization Service ("INS") agents at Logan Airport. The agents
concluded that Katebi had abandoned his permanent resident status.1
They permitted him to enter the United States but did not formally
admit him. The INS subsequently placed him in exclusion
proceedings.
At the conclusion of these proceedings, an IJ ordered
Katebi removed to Canada because he had abandoned his lawful
1
On March 1, 2003, the INS ceased to exist as an agency
within the Department of Justice. Its enforcement functions were
transferred to the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).
Because the events at issue here predate that reorganization, we
refer to the INS in this opinion.
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permanent resident status in the United States. The IJ based his
abandonment ruling on three independent grounds: (1) Katebi's trips
to Iran; (2) his conduct after returning to Canada in March of 1995;
and (3) his becoming a Canadian citizen. The BIA summarily affirmed
the IJ's order. Because there is substantial evidence to support
the IJ's second ground of decision, we confine our discussion to
that basis.
Where, as here, the BIA summarily affirms the IJ's
decision, we review the IJ's decision directly. See Quevedo v.
Ashcroft, 336 F.3d 39, 43 (1st Cir. 2003). Because we face the
fact-intensive question of whether Katebi abandoned his permanent
residence status, we review the IJ's decision under the substantial
evidence test. See Khodagholian v. Ashcroft, 335 F.3d 1003, 1006
(9th Cir. 2003); Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir.
2003). Substantial evidence exists if the IJ's decision is
"supported by reasonable, substantial, and probative evidence on the
record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992).
We have not previously considered a case concerning the
abandonment of permanent resident status; however, other circuits
have addressed the governing legal framework. Returning permanent
residents are permitted to reenter the country after foreign travel.
See Aleem v. Perryman, 114 F.3d 672, 676 (7th Cir. 1997). To
qualify as a returning permanent resident, the resident "must have
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acquired lawful permanent resident status . . ., must have retained
that status from the time that [he] acquired it, and must be
returning to an unrelinquished lawful permanent residence after a
temporary visit abroad." Moin, 335 F.3d at 418 (quoting Matter of
Huang, 19 I. & N. Dec. 749, 753 (BIA 1988)). If, however, the
resident is not returning from "a temporary visit abroad," he will
be deemed to have abandoned permanent resident status and be
excluded from the United States. See Aleem, 114 F.3d at 676.
Therefore, the determinative question is whether Katebi's trips
constitute "temporary visits abroad."
While the term "temporary visit abroad" is "inherently
nebulous," id. at 677 (internal citations omitted), there is general
agreement that
a permanent resident returns from a
temporary visit abroad only when (a) the
permanent resident's visit is for a period
relatively short, fixed by some early
event, or (b) the permanent resident's
visit will terminate upon the occurrence
of an event having a reasonable
possibility of occurring within a
relatively short period of time. If as in
(b), the length of the visit is contingent
upon the occurrence of an event and is not
fixed in time and if the event does not
occur within a relatively short period of
time, the visit will be considered a
temporary visit abroad only if the alien
has a continuous, uninterrupted intention
to return to the United States during the
entirety of his visit.
Chavez-Ramirez v. INS, 792 F.2d 932, 936-37 (9th Cir. 1986)
(internal quotations and citations omitted); see also Khodagholian,
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335 F.3d at 1006-07; Aleem, 114 F.3d at 677. Ultimately, the issue
is one of intent. See Ahmed v. Ashcroft, 286 F.3d 611, 613 (2d Cir.
2002) (per curiam) (citing United States ex rel. Polymeris v.
Trudell, 49 F.2d 730, 732 (2d Cir. 1931)). "The relevant intent is
not the intent to return ultimately, but the intent to return to the
United States within a relatively short period of time." Singh v.
Reno, 113 F.3d 1512, 1514 (9th Cir. 1997). Nonetheless, "what is
a temporary visit cannot be defined in terms of elapsed time alone."
Aleem, 114 F.3d at 677 (quoting Trudell, 49 F.2d at 732). In other
words, a returning resident does not necessarily abandon his status
if he extends his trip beyond a relatively short period; the key
remains whether his activities are consistent with an intent to
return to the United States as soon as practicable. See Singh, 113
F.3d at 1514.
Factors to be considered in evaluating the alien's intent
include the alien's family ties, property holdings, and business
affiliations within the United States, and the alien's family,
property, and business ties in the foreign country. See Moin, 335
F.3d at 419. An applicant's desire to maintain his permanent
resident status, without more, is insufficient; the alien's intent
must be supported by his actions. See Singh, 113 F.3d at 1514-15.
The IJ concluded that Katebi's actions, commencing with
his return to Canada in March of 1995, indicated his intent to
abandon his permanent resident status in the United States in favor
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of residence in Canada. Applying the factors mentioned above and
the substantial evidence standard, we cannot disturb the IJ's
conclusion.
Between 1995 and 1998, Katebi's ties to the United States
were minimal. He came to the United States in January 1995 after
receiving permanent resident status. But after obtaining this
status, Katebi stayed in the United States for fewer than three
months. During that time, he lived in Florida and worked briefly
as a security guard. Other than this brief period of employment,
Katebi did not work in the United States between 1995 and 1998. He
owned no property and did not pay taxes in 1996 and 1997. Katebi
does have two brothers who are United States citizens, but he
testified that he rarely saw them.
By contrast, after returning to Canada in March 1995,
Katebi established (or more likely resumed) significant ties with
that country.2 He rented an apartment where he lived with his
girlfriend; he worked as a taxi cab driver; he maintained a bank
account; he purchased and registered a car; and he continued to
pursue his Canadian citizenship application. In short, the evidence
supports the view that Katebi's stay in Canada was more consistent
with him resuming his prior residency than with him making a
"temporary visit."
2
Up to this point, Katebi had lived in Canada continuously
since 1989, except for the fewer than three months that he had
lived in the United States.
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Katebi contends that his actions in Canada do not
indicate his intent to abandon his permanent resident status in the
United States because he was only there to await the granting of his
Canadian citizenship application and to obtain a passport. This
argument is unpersuasive for several reasons. First, proof that
Katebi was actively pursuing more favorable immigration status in
Canada could be considered itself suggestive of Katebi's ultimate
intent to abandon his permanent resident status in the United States
in favor of residency in Canada. See In re Ruiz-Barba, 13 Immig.
Rptr. B1-9 (BIA 1995). Second, Katebi has not demonstrated that it
was necessary that he be present in Canada for the processing of his
citizenship or passport applications.3 Finally, even after gaining
Canadian citizenship and obtaining the passport, Katebi lived for
several additional months in Canada before leaving for Iran because
of a family emergency. The IJ was permitted to find that at least
from the point that he received his passport, Katebi had no reason
to stay in Canada other than the desire to reside there.
To be sure, the record could support a finding that,
3
The INS has suggested that Katebi had to be in Canada because
Canadian law required him to maintain Canadian permanent residency
in order to obtain citizenship. Katebi did not challenge this
interpretation of Canadian law before the IJ. We do not decide
whether Canadian law actually required Katebi to maintain permanent
residency during the pendency of his citizenship application. We
note only that his actions were consistent with such a requirement
and inconsistent with characterizing his stay as a "temporary
visit."
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beginning in 1998, Katebi decided that he wanted to live permanently
in the United States. But this evidence does not undermine the IJ's
conclusion that Katebi had previously abandoned his permanent
resident status in the United States.
Petition denied.
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