Mahmoud v. Barr

United States Court of Appeals
For the First Circuit

No. 19-1777

WISSAM MAHMOUD,

Petitioner,

v.

WILLIAM P. BARR, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Thompson, and Kayatta,
Circuit Judges.

Randy Olen for petitioner.
Victoria M. Braga, Trial Attorney, Office of Immigration
Litigation, with whom Joseph H. Hunt, Assistant Attorney General,
Civil Division, and Cindy S. Ferrier, Assistant Director, Office
of Immigration Litigation, were on brief for respondent.

November 30, 2020
 THOMPSON, Circuit Judge. Petitioner Wissam Mahmoud

seeks our intervention in a decision of the Board of Immigration

Appeals (BIA) dismissing his appeal of an Immigration Judge's (IJ)

decision finding that Mahmoud had abandoned his status as a Lawful

Permanent Resident (LPR) in the United States and ordering removal.

Bound by a deferential standard of review, we must deny Mahmoud's

petition.

BACKGROUND

Mahmoud's Story

Mahmoud is a Lebanese citizen, admitted to the United

States as an LPR in 1991. By 2002, Mahmoud's parents and siblings

had all lawfully immigrated to the United States, with the bulk of

them settling in Rhode Island. From 1991 to 2008, Mahmoud lived

with his family in what might be appropriately described as the

family compound. Consequently, Mahmoud never owned his own home

in Rhode Island. During this seventeen-year period, he did pay

taxes to the United States and had health insurance here.

In 2008, in the midst of a United States recession,

Mahmoud, having lost his job managing one brother's restaurant,

obtained a temporary work visa and moved to Edmonton, Alberta,

Canada, to work in a restaurant owned by another one of his

brothers. While there, he solely paid taxes to Canada and had

Canadian health insurance.

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 Mahmoud renewed his Canadian temporary work visa

annually because he says he was unable to find work in the United

States and, in 2012, he purchased a home in Canada. In April of

2013, Mahmoud was visiting the United States when a United States

Customs and Border Patrol Officer advised him that he should apply

for a reentry permit for travel to the United States.

Along the way, Mahmoud met a Canadian citizen of Lebanese

descent who would become his wife. The couple travelled to Lebanon

in 2013 where they married in August. While Mahmoud was there, a

United States Customs and Border Patrol Officer again advised

Mahmoud that he should obtain a reentry permit.

After the wedding, the couple flew back to Canada with

the professed intention of settling their affairs and returning to

the United States. Towards that end (and as before), Mahmoud's

wife never petitioned Canada on Mahmoud's behalf for any sort of

permanent immigration status. But before Mahmoud could order his

affairs, he fell ill with listeria and viral meningitis and

required months of hospitalization and rehabilitation in Canada

from October of 2013 through most of 2014. The rehabilitation

program prohibited Mahmoud from traveling, but once he was well

enough to adequately move about, he says he intended to return to

the United States. In July of 2014, Mahmoud's wife gave birth to

their son, whose birth was registered in Canada and not in the

United States.

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 By November of 2014, Mahmoud was physically able to

travel and applied for preclearance to enter the United States.

He was paroled into the United States in December of 2014 for a

deferred inspection because the duration of Mahmoud's absence from

the United States at that point raised red flags about his

admissibility. In total, from 2008 to 2014, Mahmoud returned to

the United States seven to ten times to visit family and look for

a job. The visits, ranging in length from three days to several

weeks, cumulated in Mahmoud being physically present in the United

States for 110 days over that six-year period.

At the hearing before the IJ, the government contended

that Mahmoud was not admissible into the United States because he

had abandoned his LPR status. In support of its position, the

government highlighted Mahmoud's connections to Canada and the

short time he spent in the United States. For his part, Mahmoud

testified to the facts as summarized above and repeatedly stated

that he always intended to return to the United States. In its

ruling, the IJ concluded that Mahmoud's actions did not demonstrate

an uninterrupted intent to return to and permanently reside in the

United States. Specifically, the IJ held that Mahmoud's extended

trips out of the country, various connections to Canada, and delay

in pursuing a reentry permit (even after being warned in April and

August of 2013 to do so) all evinced that Mahmoud lacked the intent

to return to the United States as soon as practicable. As to

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Mahmoud's main contention that he was looking for work in the

United States during his travels, the IJ found that Mahmoud's trips

were often too short to facilitate a search for work.

On appeal to the BIA, the Board agreed with the IJ that

Mahmoud did not demonstrate a continuous, uninterrupted intent to

return to the country and dismissed the appeal. The BIA noted

that Mahmoud's record demonstrated a close connection to Canada

(which he had maintained for five years when he became too ill to

travel) and that his trips to the United States were too short to

allow for a reasonable search for employment.

Mahmoud now petitions us for relief. He argues that he

always wanted to move back to the United States once he had a job

and the burden is on the government to disprove that. Carefully

considering his argument, the record, and the decision of the BIA,

we deny Mahmoud's petition.

OUR TAKE

Standard of Review

When an applicant for admission has a colorable claim to

returning to lawful permanent resident status, the government

bears the burden of proving by "clear, unequivocal, and convincing

evidence" that he abandoned his status while out of the country

and is therefore ineligible for admission into the United States.

Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir. 2005) (quoting

Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997)). Where "the

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BIA adopted and affirmed the IJ's decision yet supplied its own

gloss, we review the tiered decisions as a unit." Arias-Minaya v.

Holder, 779 F.3d 49, 52 (1st Cir. 2015). We review the fact-

intensive question of whether the government proved by clear,

unequivocal, and convincing evidence that an LPR abandoned his

status under the "substantial evidence test." Katebi, 396 F.3d at

466. "Substantial evidence exists if the [BIA's] decision is

'supported by reasonable, substantial, and probative evidence on

the record considered as a whole.'" Id. (quoting INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992)). To grant Mahmoud's petition,

the evidence must not only support the contrary finding, but compel

it. See Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003).

Retention or Abandonment of LPR Status

In most circumstances, an LPR is permitted to reenter

the United States after traveling abroad, so long as he is

"returning to an unrelinquished lawful permanent residence after

a temporary visit abroad." Katebi, 396 F.3d at 466 (quoting Moin

v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003)). If, however, the

trip in question was not a "temporary visit abroad," then the LPR

will be deemed to have abandoned his permanent resident status.

Id. Although the notion of a "temporary visit abroad" is

"inherently nebulous," id. (quoting Aleem v. Perryman, 114 F.3d

672, 676 (7th Cir. 1997)), we have identified two main

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circumstances in which a trip abroad qualifies as a temporary

visit:

[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 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 the
visit.

Id. (quoting Chavez-Ramirez v. INS, 792 F.2d 932, 936-37 (9th Cir.

1986)). Mahmoud agrees that his time abroad was not "relatively

short" and that his case is therefore best analyzed under part

(b). The operative question then is whether the BIA erred when it

held he did not have "a continuous, uninterrupted intention to

return to the United States during the entirety of his visit" to

Canada. Id.

Merely professing one's intent to maintain LPR status is

not alone enough. Id. at 467. Indeed, intent can be a slippery

concept, so we evaluate Mahmoud's actions to see if they evince

his continued intent to return to the United States. Though time

abroad can be an informative factor, it is not alone determinative

in this holistic analysis. We look at the record to determine if

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Mahmoud's "activities are consistent with an intent to return to

the United States as soon as practicable." Id. at 466.

Specifically, we look at Mahmoud's "family ties, property

holdings, and business affiliations within the United States" and

in Canada, where he was living during his time abroad. Id. at

466-67 (citing Moin, 335 F.3d at 419).

Mahmoud undoubtedly had strong family connections in the

United States through the entirety of his time abroad. His parents

and several siblings lived in Rhode Island and he stayed with them

during his visits to the United States. Though Mahmoud also had

a brother in Canada with whom he lived for some time and he

eventually married a Canadian citizen, that alone does not minimize

his familial connections to the United States. However, Mahmoud's

other actions as reasonably interpreted by the government weaken

his contention that he maintained a continual intention to return

to the United States as soon as practicable. See Singh, 115 F.3d

at 1514. He purchased a home in Canada, paid taxes there,

maintained employment there, married a Canadian citizen. During

that same period (2008 - 2014), Mahmoud only spent 110 days total

in the United States, and did not pay taxes, have employment, or

own any property in this country. Considering that, we can see

why the BIA did not believe he had a continual intent to make a

hasty return to the United States. See Matter of Huang, 19 I. &

N. Dec. 749, 755-56 (BIA 1988) (holding government met its burden

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of proving LPR relinquished status where she did not maintain a

residence or have a job in the United States and stayed with

relatives when visiting occasionally). Further, even prior to his

illness, he delayed applying for reentry to the United States,

despite multiple suggestions to do so from immigration officers.

The sticking point of all of this, which was highlighted

at oral argument, is Mahmoud's contention on appeal that he planned

to return to the United States as soon as he obtained employment.

But the only evidence in the record supporting this contention is

Mahmoud's own conclusory testimony that he "look[ed] for work"

each time he returned to the United States. Mahmoud did not

present evidence of any specific efforts he made to find a job,

nor is it obvious why an experienced restaurant worker could not

find a job working in a restaurant in the United States for over

five years. Mahmoud argues though that the burden below is on the

government, so he has no obligation to introduce such evidence.

Mahmoud is not wrong about the burden, but his argument stalls

when one realizes that the government introduced evidence of

Mahmoud's extensive connections to Canada. The government met its

burden with the weight of that evidence, so it need not disprove

Mahmoud's unsupported contention that he wanted a job in the United

States.1 See Katebi, 396 F.3d at 466-67.

1It is worth noting that Mahmoud's own communal or cultural notions
regarding family may well be working to his disadvantage here. He

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 Mahmoud makes two more arguments on appeal that require

attention. First, he points out that since returning to the United

States in 2014, he has put his house in Canada on the market, has

taken a job working for one of his brothers in the United States,

and has petitioned for his wife and their child to join here. None

of this undermines the conclusion that Mahmoud abandoned his lawful

permanent resident status during his many years of living and

working in Canada. Second, Mahmoud argues that the BIA made a

factual error when it noted that Mahmoud did not move back to the

United States promptly after his brother opened a restaurant here.

Mahmoud contends that his brother did not open that restaurant

until Mahmoud was in the hospital in 2013, so he did indeed move

as soon as practicable back to the United States to work here.

The transcript excerpts upon which Mahmoud relies reveal some

confusion, apparently brought about by the government's vague

questioning, about which of Mahmoud's brothers is being discussed.

Neither the IJ's or BIA's decisions rely upon this allegedly

only resided with family in the United States and never acquired
title to his own home here. Our case law conflates reliance on
family for housing with a lack of permanence and does not reward
those who stay with their families. See Singh, 113 F.3d at 1515-
16 (collecting and relying upon cases where LPR lost status after
only staying with family during trips into the United States).
This is not to say that a different level of cultural understanding
would make a difference in Mahmoud's case (or many others), but
this limited convention of understanding intent certainly
establishes a deep hole for Mahmoud (and others who rely on family
for housing in the United States) to climb out of.

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erroneous fact to any meaningful degree and, on the whole, the

decisions are supported by the record evidence. See Elias-

Zacarias, 502 U.S. at 481 n.1 ("To reverse the BIA finding we must

find that the evidence not only supports that conclusion, but

compels it.").

CONCLUSION

For the foregoing reasons, the petition is denied.

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