[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10971 March 27, 2006
________________________ THOMAS K. KAHN
CLERK
BIA No. A18-170-979
YURG BIGLER,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(March 27, 2006)
Before EDMONDSON, Chief Judge, BLACK and FAY, Circuit Judges.
PER CURIAM:
This is an immigration case in which Yurg Bigler (Bigler) petitions for
review of the Board of Immigration Appeals’ (“BIA”) final order of removal. The
BIA affirmed the immigration judge’s (“IJ”) oral decision, which found Bigler
removable pursuant to 8 U.S.C. § 1227, INA § 237(a)(1)(A). Specifically, the IJ
found that Bigler clearly abandoned his status as a lawful permanent resident
(“LPR”) of the United States and that he did not possess a valid immigrant visa
upon re-entry. We affirm and find that substantial evidence supports the ruling.
I. Background
Bigler, a citizen of both Colombia and Switzerland, was originally admitted
into the United States by the Immigration and Naturalization Service (“INS”)1 as
an LPR on or about July 14, 1968. Bigler was five at the time he acquired LPR
status. He resided in the United States with his parents and his brother until 1988,
when Bigler’s parents asked him to look after the family farm in Colombia. Bigler
subsequently moved to Colombia shortly after marrying a Colombian citizen and,
while there, had children and purchased a home.
1
The Homeland Security Act (“HSA”), effective November 25, 2002, created the
Department of Homeland Security (“DHS”) and abolished the INS. Pub. L. No. 107-296, 116
Stat. 2135. The HSA transferred INS functions to the DHS. This case was initiated while the INS
was still in existence. We therefore refer to the INS rather than the DHS as the relevant agency.
2
Bigler resided in Colombia for over seven years.2 He stated that during the
early years of his residency in Colombia, he experienced difficulty re-entering the
United States using his LPR card. According to Bigler, this ultimately led him to
sign a document at the United States Consulate in Bogota, Colombia on October
31, 1990 abandoning his LPR status, apparently to facilitate re-entry into the
United States. The document indicated that Bigler voluntarily abandoned his LPR
status as of January 1988. The stated reason for abandonment was that he had not
been back to the United States prior to one year. Bigler surrendered his alien
registration card at this time, and the Consulate issued him a visitor’s visa. This
allowed him to re-enter the United States.
Bigler testified that there was some discrepancy with the birth date on his
LPR card and that the INS officer told him simply to sign the form and he would
receive a visitor’s visa. He testified that he understood the visitor’s visa would
allow him to re-enter the United States, at which point Bigler intended to correct
the situation with his birth date. Bigler further testified that he did not know he
was abandoning his residence in the United States by signing the form. Instead, he
2
The Code of Federal Regulations defines the term “residence” as follows:
[A]n alien’s residence is the same as that alien’s domicile, or principal actual dwelling place,
without regard to the alien’s intent, and the duration of an alien’s residence in a particular
location is measured from the moment the alien first establishes residence in that location.
8 C.F.R. § 316.5(a).
3
understood that the visitor’s visa would allow him to re-enter the United States so
that he could correct the birth date on his LPR card.3
Bigler lived in Colombia from January 1988 until December 1995. He
testified that during this time, he went “back and forth” to the United States using
his visitor’s visa. At some point, Bigler divorced, and his two children came to the
United States.4 Bigler testified that in the year 2000, he entered the United States
using his visitor’s visa and met with an INS officer in Atlanta, Georgia.
According to his testimony, Bigler left this meeting with the impression that he
would receive a replacement LPR card due to the confusion with his date of birth.
He further testified that he waited for the card for eight or nine months and, not
having received the card, met with an INS officer in Tampa, Florida to inquire
about the delay. Bigler received a replacement LPR card in the year 2000.
Bigler had also filed an application for naturalization with the INS office in
Tampa, Florida on or about October 6, 1997. The preliminary naturalization
interview took place on November 6, 2000. On April 16, 2001, the INS officer
conducting the interview denied Bigler’s application for naturalization based on
his lack of continuous residence in the United States and his abandonment of LPR
3
It is clear from the record that Bigler could speak and read Spanish.
4
They now live with their mother who is married to a United States citizen. His children
are both lawful permanent residents of the United States.
4
status in October 1990.
On February 19, 2002, Bigler made a sworn statement to the INS in Tampa,
Florida in which he acknowledged that he lived in Colombia from January 1988 to
December 1995, and that he applied for a visitor’s visa in the year 1995. Bigler did
not contest a statement by the INS interviewing officer that he had abandoned his
United States residency when he signed the form on October 31, 1990 in Bogota,
Colombia.
On November 29, 2002, the INS served Bigler with a notice to appear,
thereby commencing removal proceedings in the Orlando immigration court. See 8
C.F.R. § 3.14(a)(2002). The notice stated that Bigler was last admitted to the
United States as an LPR on or about July 14, 2000, that Bigler intended to remain
permanently or indefinitely in the United States at that time, and that Bigler was
therefore subject to removal from the United States pursuant to INA §
237(a)(1)(A) because he was inadmissible by law at the time of entry.5
5
The charge read specifically as follows:
Section 237(a)(1)(A) of the Immigration and Nationality Act - in that at the time of entry or
adjustment of status you were within one or more classes of alien[s][in]admissible by law,
to wit: alien immigrants who are not in possession of a valid unexpired immigrant visa, re-
entry permit, border crossing identification card or other valid entry document required by
the Act, or who are not in possession of a valid unexpired passport or other suitable travel
document or identity or nationality document... as required by regulations issued by the
Attorney General pursuant to Section 212(a)(7)(A)(i) of the Immigration and Nationality Act.
5
On May 21, 2003, Bigler appeared before an IJ and denied several factual
allegations contained in his notice to appear. Bigler also did not concede
removability as charged. The proceeding was adjourned, and a contested
removability hearing was held on November 7, 2003.6 The government submitted
the following evidence of Bigler’s removability at the November 2003 hearing: (1)
Bigler’s immigration and alien registration form completed when he first entered
the United States in 1968; (2) the INS decision dated April 16, 2001 determining
that Bigler was ineligible for naturalization; (3) the INS record of Bigler’s sworn
statement dated February 19, 2002; (4) Bigler’s Colombian and Swiss passports;
(5) the INS form entitled “Abandonment of Legal Status as Permanent Resident,”
signed by Bigler, and dated October 16, 1990; and (6) Bigler’s LPR card, which
states that it has been valid since 1968 and will expire in 2009.
The IJ of the contested removability hearing found that the government
clearly established Bigler’s removability. The IJ made a credibility determination
that Bigler’s claimed lack of knowledge as to the import of signing the
abandonment form was not believable, particularly in light of the corroborating
6
Bigler argues that the IJ erred by failing to consider the fact that the INS reissued
Bigler’s LPR card. There is no evidence, however, that the INS at that time considered all of the
facts that were before the IJ here. Moreover, the INS issued a decision in April 2001 determining
that Bigler was ineligible for naturalization due to lack of continuous residence in the United
States and to his signing of an abandonment form in October 1990.
6
information contained in his sworn statement. The IJ further noted Bigler’s
marriage to a Colombian native in 1987, and the birth of his two children. Based
on the foregoing evidence, the IJ sustained the charge of removability against
Bigler pursuant to INA § 237(a)(1)(A).
Bigler appealed the IJ’s decision to the BIA and on January 31, 2005, the
BIA affirmed without opinion. Bigler now appeals the BIA’s affirmance of the IJ’s
removability determination.
II. Discussion
We review the IJ’s underlying decision rather than the BIA’s determination
because the BIA affirmed without an opinion. See Sepulveda v. U.S. Atty. Gen.,
401 F.3d 1226, 1230 (11th Cir. 2005)(“When the BIA summarily affirms the IJ’s
decision without an opinion, the IJ’s decision becomes the final removal order
subject to review”). In the proceedings before the IJ, the INS had the burden of
establishing Bigler’s removability by clear and convincing evidence. INA §
240(c)(2)(A), 8 U.S.C. § 1229a(c)(3)(A). This Court reviews the IJ’s factual
findings and credibility determinations as to whether the INS presented clear and
convincing evidence of removal under the substantial evidence test. See
Farquharson v. U.S. Atty. Gen., 246 F.3d 1317, 1320 (11th Cir. 2001). The
substantial evidence test requires reversal of factual findings only if the evidence
7
presented compels a contrary conclusion. Id. We “must affirm the IJ’s decision if it
is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Sepulveda, 401 F.3d at 1230 (citations omitted). We
review the IJ’s statutory interpretation de novo, but defer to the IJ’s interpretation
if reasonable. Farquharson, 246 F.3d at 1320.
We conclude that substantial evidence supports the IJ’s determination that
petitioner intended to abandon his LPR status. This circuit has not set forth a
specific standard for determining whether or not a resident intended to abandon
his or her LPR status, however, other circuits have articulated factors which may
be considered in making this determination. The first and fifth circuits have noted
that, “[t]o qualify as a returning resident alien, an alien must have acquired lawful
permanent resident status in accordance with our laws, 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
v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003)(citations omitted); see also Katebi
v. Ashcroft, 396 F.3d 463, 466 (1st Cir. 2005). Where, as here, petitioner’s
absence is not relatively short in duration, petitioner must show “a continuous,
uninterrupted intention to return to the United States during the entirety of his
visit.” Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997). Finally, petitioner’s
8
desire to remain a permanent resident, without more, is insufficient to demonstrate
his intent; petitioner’s intent must be supported by his actions. Id.
Substantial evidence supports the IJ’s conclusion that the government
presented clear and convincing evidence of Bigler’s intent to abandon his LPR
status. To begin with, Bigler signed a form entitled, “Abandonment of Legal
Status as Permanent Resident.” The IJ made a credibility determination, consistent
with the evidence presented, that Bigler signed the abandonment form knowingly.
Bigler also made a sworn statement to the INS, dated February 19, 2002,
acknowledging that he lived in Colombia from January 1988 until December
1995. In that statement, Bigler did not contest the fact that he had abandoned his
resident card in the year 1990. Bigler also applied for a visitor’s visa in 1995.
Finally, Bigler’s actions during his absence from the United States support
the IJ’s finding of intent. Not only did Bigler live and work in Colombia for an
extended period of time, but he also married a Colombian citizen and had children
there. Bigler did not attempt to correct any problems with his LPR status until
after he divorced and returned to the United States. Moreover, contrary to Bigler’s
testimony, the documentary evidence suggests that he allowed one year or more to
elapse between his visits to the United States. Although the government had the
burden of proving that Bigler intended to abandon his LPR status, lawful
9
permanent residency in the United States still requires some effort to maintain.7
The evidence suggests that Bigler not only allowed significant periods of time to
elapse between visits, but he also signed a form abandoning his LPR status in the
year 1990. The IJ considered all of the foregoing evidence, including Bigler’s
testimony, and determined that Bigler intended to abandon his LPR status. We
find that substantial evidence supports this conclusion.
III. Conclusion
The IJ’s determination that the petitioner intended to abandon his status as a
lawful permanent resident of the United States is clearly supported by the evidence
in this case. Moreover, the evidence does not compel the contrary conclusion that
petitioner’s intention to return to the United States remained uninterrupted during
the time of his residency, marriage, and employment in Colombia. Unfortunately
for the petitioner, his present desire to maintain a permanent residency is
insufficient to overcome the fact that he previously abandoned his LPR status. We
therefore affirm the BIA’s decision to adopt and affirm the IJ’s oral decision.
Affirmed.
7
The Code of Federal Regulations states the following with regard to maintaining
permanent residency:
Absences from the United States for continuous periods of between six (6) months and one
(1) year during the periods for which continuous residence is required under § 316.2(a)(3)
and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the
applicant can establish otherwise to the satisfaction of the Service. 8 C.F.R. 316.5(c)(1)(i).
10