NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 25 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROSA MARIA PORTILLO-ESCOBAR, No. 07-71998
Petitioner, Agency No. A046-412-551
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 8, 2011
Pasadena, California
Before: B. FLETCHER and N.R. SMITH, Circuit Judges, and BREWSTER,
District Judge.**
Rosa Maria Portillo-Escobar, a citizen of El Salvador, petitions for review of
the Board of Immigration Appeals’ (“BIA”) decision that she abandoned her
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Rudi M. Brewster, Senior District Judge for the U.S.
District Court for Southern California, San Diego, sitting by designation.
lawful permanent resident (LPR) status in the United States. We have jurisdiction
pursuant to 8 U.S.C. § 1252. We deny the petition.
Whether a permanent resident abandoned her LPR status is reviewed under
the substantial evidence standard. Khodagholian v. Ashcroft, 335 F.3d 1003, 1006
(9th Cir. 2003) (citing Chavez-Ramirez v. INS, 792 F.2d 932, 934–35 (9th Cir.
1986)). “To reverse under the substantial evidence standard, the evidence must be
so compelling that no reasonable factfinder could fail to find the facts were as the
alien alleged.” Khodagholian, 335 F.3d at 1006 (citing Singh v. Reno, 113 F.3d
1512, 1514 (9th Cir. 1997) (citing INS v. Elias-Zacarias, 502 U.S. 478, 483
(1992))).
“When an applicant has a colorable claim to returning resident status, as
[Portillo-Escobar] does, the INS has the burden of proving [she] is not eligible for
admission to the United States.” Singh, 113 F.3d at 1514. That burden “is to
establish by clear, unequivocal, and convincing evidence that [Portillo-Escobar’s]
status has changed.” Id. (citing Woodby v. INS, 385 U.S. 276, 277 (1966)).1
1
The Government argues that Woodby’s “clear, unequivocal, and convincing
evidence” standard has been replaced with a “clear and convincing” standard. The
BIA applied the former standard. We therefore cannot consider the government’s
argument. See Navas v. INS, 217 F.3d 646, 658 n. 16 (9th Cir. 2000) (“[T]his court
cannot affirm the BIA on a ground upon which it did not rely.”).
2
“Thus, combining our substantial evidence review with the underlying INS burden,
we review for whether substantial evidence supports a finding by clear,
unequivocal, and convincing evidence that [Portillo-Escobar] abandoned [her]
lawful permanent residence in the United States.” Khodagholian, 335 F.3d at
1006.
In June 2004, Portillo-Escobar sought to re-enter the United States as a
returning resident alien. To qualify for such re-entry, she “must be returning to an
unrelinquished lawful permanent residence after a temporary visit abroad.” Singh,
113 F.3d at 1514 (internal quotation marks and second citation omitted).
Portillo-Escobar’s last visit to El Salvador lasted about thirteen months. She
contends that she went on vacation, intending to stay three to five months, but that
the visit was prolonged by the unexpected death of her maternal grandfather and
her need to treat the clinical depression she experienced as a result of that event.
Where
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 intent to return to the United States during the entirety
of [her] visit.
3
Chavez-Ramirez, 792 F.2d at 936–37 (internal citations omitted). “The relevant
intent is not the intent to return ultimately, but the intent to return to the United
States within a relatively short period . . . . [She] may extend [her] trip beyond
that relatively short period only if [she] intends to return to the United States as
soon as possible thereafter.” Singh, 113 F.3d at 1514 (internal citation omitted).
The record does not compel the conclusion that the BIA erred in refusing to
credit Portillo-Escobar’s testimony that she had the intent to return to the United
States within a relatively short period of time. Portillo-Escobar left for El
Salvador, allegedly on vacation, after less than a month spent in the United States.
That short stay followed another extended, thirteen-month stay in El Salvador.
Moreover, the sudden death of Portillo-Escobar’s maternal grandfather occurred
five and a half months into her trip, beyond her alleged three-to-five months
planned stay. Finally, the doctor who treated Portillo-Escobar for clinical
depression never restricted her travel.
Portillo-Escobar’s lax plans regarding her return to the United States are in
stark contrast to her plans to go back to El Salvador. Although she had just spent
thirteen months in El Salvador, Portillo-Escobar had upon her, on her attempt to
enter the United Stated in June 2004, an airline ticket for El Salvador for less than
two months later. This chronology fits within a pattern that included extended
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stays in El Salvador and very little time spent in the United States. Thus, out of
five and a half years since she received LPR status, Portillo-Escobar spent about
one year in the United States and the remaining four and a half years in El
Salvador.
Portillo-Escobar claims that all her absences from the United States were
planned for short periods, but were extended on account of contingencies which
had “a reasonable possibility of [terminating] within a relatively short period of
time.” Chavez-Ramirez, 792 F.2d at 937. We address each trip in turn.
Portillo-Escobar’s first return trip to El Salvador, in April 1999, was for the
purpose of caring for her paternal grandmother, who had suffered a heart attack
and needed surgery. The grandmother had surgery in May 1999 and was released
from the hospital after fifteen days. Portillo-Escobar ended up staying in El
Salvador for sixteen months.
In another case, this court held that a six-month trip to care for terminally ill
mother and for LPR’s recently orphaned nephews was a contingency which had a
“reasonable possibility of [terminating] within a relatively short period of time”
and thus do not support a conclusion that the LPR abandoned that status.
Khodagholian, 335 F.3d at 1006. In contrast, Portillo-Escobar’s trip lasted sixteen
months. Also, the record is void of evidence regarding the kind of care her
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grandmother needed and whether that need lasted for more than a year after the
surgery. Further, Portillo-Escobar testified that she returned to the United States
because her aunt needed help taking care of the children. Thus, it appears that the
length of Portillo-Escobar’s stay was not determined by grandmother’s health, but
by Portillo-Escobar’s employment opportunities in the United States.
Portillo-Escobar’s second trip to El Salvador took place seven months after
she returned to the United States, on March 18, 2001, after her paternal
grandmother died on March 17. She contends that she stayed longer than planned
because, according to a letter from her aunt in El Salvador, she was in treatment for
severe depression from March 19, 2001 to February 2002. Portillo-Escobar
testified, however, that she was treated for depression for three months. She
provided no medical records whatsoever and does not contend that the treating
physician forbade her to travel. She finally returned to the United States in
February 2002, after eleven months.
Portillo-Escobar’s third visit to El Salvador took place in March 2002.
Portillo-Escobar went back for the anniversary of her grandmother’s death. Once
there, she changed her mind and decided to stay for the country’s Independence
Day, which is celebrated in September. She claims she had a return ticket for
October, but then one of her brothers had a serious accident and needed help while
6
he was recovering. In view of the fact that Portillo-Escobar returned to El
Salvador after a mere month in the United States and after having spent the
previous eleven months in El Salvador, her explanation that she changed her mind
about the length of her stay indicates that she had no schedule for returning and
was “merely planning to let future events determine [her] course.” Aleem v.
Perryman, 114 F.3d 672, 678 (7th Cir. 1997). Her brother’s accident was one such
event.
Portillo-Escobar’s travel history paints the picture of an LPR who takes
every opportunity to travel to her native country without definite plans to return
and who merely returns to the Unites States in order to maintain her LPR status.
See Singh, 113 F.3d at 1514 (“An alien’s desire to retain his status as a permanent
resident, without more, is not sufficient; his actions must support his professed
intent.”). Portillo-Escobar’s limited ties to the United States confirm this
conclusion. See Chavez-Ramirez, 792 F.2d at 937 (discussing some relevant
factors).
Portillo-Escobar emphasizes that most of her family lives in the United
States and that she cares for her aunt’s children. The fact that Portillo-Escobar has
spent so little time in the United States, and so irregularly, contradicts this latter
contention. Portillo-Escobar, moreover, has never worked outside her aunt’s house
7
prior to her removal proceedings; has never established a residence of her own in
the United States; has never had a California driver’s license or identification; has
never had a bank account; has not paid any taxes prior to her removal proceedings;
and had no property or significant assets in the United States. In contrast, despite
becoming an LPR at twenty, Portillo-Escobar stated when interviewed at the
airport in June 2004 that she has worked in her paternal grandfather’s business in
El Salvador, as an administrator, since she was eighteen and has continued to do
so, including during her latest, thirteen-month stay in El Salvador; that she comes
to the United Stated mainly for vacationing or work opportunities; and that she did
not intend to live permanently in the United States and wished to relinquish
voluntarily her LPR status.
Portillo-Escobar’s travel history, her limited ties to the United States, and
her own statements constitute substantial evidence supporting the BIA’s finding by
clear, unequivocal, and convincing evidence that Portillo-Escobar’s latest, thirteen-
month trip to El Salvador was not a “temporary visit abroad” and, therefore, that
she had abandoned her LPR status in the United States.
DENIED.
8