Humaira Lateef v. Eric Holder, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0195p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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HUMAIRA KHALID LATEEF; MUHAMMAD
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NADEEM ASLAM; MAHEEN NADEEM;
DANIYAL MUHAMMAD NADEEM, -
Petitioners, -
No. 10-3354

,
>
-
-
v.
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ERIC H. HOLDER, JR.,
Respondent. -
N
On Petition for Review of
Decision of the Board of Immigration Appeals.
Nos. A047 703 238; A047 703 237; A047 703 236; A042 984 748.
Argued: December 1, 2011
Decided and Filed: June 26, 2012
Before: SILER, McKEAGUE, and STRANCH, Circuit Judges.

_________________

COUNSEL
ARGUED: Russell Reid Abrutyn, MARSHAL E. HYMAN & ASSOC., PC, Troy,
Michigan, for Petitioners. Julie M. Iversen, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Russell Reid Abrutyn,
Marshal E. Hyman, MARSHAL E. HYMAN & ASSOC., PC, Troy, Michigan, for
Petitioners. Julie M. Iversen, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
SILER, J., delivered the opinion of the court, in which McKEAGUE, J., joined.
STRANCH, J. (pp. 13–23), delivered a separate dissenting opinion.

1
No. 10-3354 Lateef, et al. v. Holder Page 2

_________________

OPINION
_________________

SILER, Circuit Judge. Petitioners Humaira Lateef, her husband and minor
children petition for review of an order by the Board of Immigration Appeals (BIA) that
held that Lateef had abandoned her lawful permanent resident (LPR) status, which was
imputed to her daughter and served as the foundation to deny her husband and other
child entry into the United States. Lateef argues that while she spent the majority of her
time in her native country after she became a LPR, she never abandoned her status. For
the following reasons, we deny this petition for review.

I.

A.

Lateef is a native of Pakistan and became a LPR in June 1991 when she moved
to the United States with her parents and brothers. Two months later she returned to
Pakistan to complete her final two years of medical school because U.S. medical schools
would require her to completely restart her education. After finishing medical school
in Pakistan, she returned to the U.S. in May 1993 with a valid reentry permit.1 Then she
remained in the U.S. for over two years.

Subsequently, Lateef began to spend the vast majority of her time in Pakistan.
She returned to Pakistan in June 1995 to marry her husband. She returned to the U.S.
nine months later, in March 1996, and took part one of the exam to practice medicine in
the U.S. Her husband also applied for an entry visa. Lateef and her husband believed
it would be granted in a relatively short period of time. Lateef returned to Pakistan five
months later in August 1996. She became pregnant with her daughter shortly after her
arrival and took part two of the U.S. medical exam.

1
“A permanent resident . . . in possession of a valid reentry permit who is otherwise admissible
shall not be deemed to have abandoned status based solely on the duration of an absence or absences while
the permit is valid.” 8 C.F.R. § 223.3(d)(1).
No. 10-3354 Lateef, et al. v. Holder Page 3

Lateef remained in Pakistan for just over a year and returned to the U.S. with her
daughter in August 1997. Lateef did not return to the U.S. earlier because her doctor
advised her not to fly during her pregnancy. Her daughter was granted LPR status as “a
child born during [a] temporary visit abroad” to an LPR. 8 C.F.R. § 211.1(b)(1). During
her over six-month stay in the U.S., Lateef retook part two of the medical exam because
she failed her previous attempt. She also filed an application for naturalization but
subsequently withdrew it because she had not been in the U.S. the requisite number of
days. Lateef then returned to Pakistan in March 1998 to see her husband. She stayed
in Pakistan for over three months before returning to the U.S. for thirteen days to apply
for medical residency positions in June 1998.

After staying in the U.S. thirteen days, in July 1998 Lateef returned to Pakistan
for six months. Lateef stated she had to return to Pakistan because her daughter missed
her and, even though her daughter was not ill, she was developing behavioral problems.
Lateef stayed in Pakistan to help plan her brother’s wedding and later returned to the
U.S. in January 1999 for twenty days to take her naturalization exam. In February
1999, she returned to Pakistan for nearly nine months. In October 1999, Lateef returned
to the U.S. for two weeks in anticipation of receiving offers to interview for residency
positions, but she returned to Pakistan in November 1999 due to her daughter’s
continuing behavioral problems.

Lateef remained in Pakistan for a year and three months without any definite
plans of returning to the U.S. She only knew that she wanted to return “as soon as
possible.” But when Lateef’s husband and children2 were granted immigrant visas in
November 2000, they stayed in Pakistan until February 2001 to attend weddings.

Lateef and her family attempted to enter the U.S. in February 2001. Even though
she had not been in the U.S. since November 1999, Lateef told an officer with the former

2
Lateef gave birth to her son in May 2000.
No. 10-3354 Lateef, et al. v. Holder Page 4

Immigration and Naturalization Service (INS)3 that she was last in the U.S. in July
2000, but the passport did not corroborate Lateef’s statement. Lateef stated that the
previous INS officer she saw in July 2000 must have forgotten to stamp her passport.
Nevertheless, Lateef and her family were referred for secondary immigration inspection.

During the secondary screening Lateef admitted the truth. After changing her
story that she had last been in the U.S. in April 2000, the INS officials confronted Lateef
with documents found in the family’s luggage. When confronted with this evidence,
Lateef admitted that she had not been in the U.S. since November 1999 and that she lied
to the INS officials because she knew she had been traveling abroad for more than a
year.

Lateef’s only ties to the U.S. are her LPR parents and brothers. Prior to her
arrival in Feburary 2001, she had never been employed or owned property in the U.S.

Lateef made seven trips to Pakistan during the approximately 116 months after
she immigrated to the U.S. Over the course of that 116 months after she first arrived in
the U.S. until her encounter with INS in February 2001, she spent thirty-five percent of
her time in the U.S. (40 months) and sixty-five percent of her time in Pakistan
(76 months).

B.

Removal proceedings against Lateef and her family began in June 2001. All
Petitioners were charged with attempting to enter the U.S. without valid documentation
in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). Lateef was also charged with
misrepresenting a material fact to enter the U.S., in violation of 8 U.S.C.
§ 1182(a)(6)(C)(i), and her husband was charged with attempting to enter the U.S. to
work without certification from the Department of Labor, in violation of 8 U.S.C.

3
On March 1, 2003, the INS ceased to exist and its functions were transferred to the Department
of Homeland Security. See Homeland Security Act of 2002, Pub.L. 107-296, §§ 441, 471, 116 Stat. 2135,
2192, 2205 (codified at 6 U.S.C. § 101, et seq.). Since the relevant events in this case occurred before this
change took effect, we refer to the INS as the germane government agency.
No. 10-3354 Lateef, et al. v. Holder Page 5

§ 1182(a)(5)(A). The only issue that Lateef and her family contested was whether she
had abandoned her LPR status.

In 2004, the Immigration Judge (IJ) ordered the Petitioners removed as charged.
The IJ determined that Lateef had abandoned her LPR status; accordingly, the
Petitioners were not entitled to immigrant visas. The BIA subsequently affirmed the IJ’s
decision without opinion.

On appeal to this court, we remanded to the BIA for it to consider Lateef’s
arguments regarding her daughter’s immigration status and how this may impact its
decision that Lateef had abandoned her LPR status. The BIA vacated its earlier decision
and remanded the case to the IJ for further factual inquiry on these issues.

In 2008, the IJ sustained the removal of all Petitioners as charged. The IJ held
that once Lateef had abandoned her LPR status it was imputed to her daughter. Also,
the IJ denied Lateef’s new application for a waiver of inadmissibility due to her material
misrepresentation, under 8 U.S.C. § 1182(I).

Petitioners appealed the IJ’s decision to the BIA and raised new issues for appeal.
In addition to their arguments that Lateef had not abandoned her LPR status and that her
daughter maintained her LPR status, Petitioners raised the arguments that Lateef’s
husband was not inadmissible to the U.S. under 8 U.S.C. § 1182(a)(5)(A), that Lateef’s
husband and children were granted visas as LPRs pursuant to 8 C.F.R. § 1205.1(a)(3)
before she was deemed to have abandoned her LPR status and therefore remain
admissible to the U.S., and that Lateef is not inadmissible to the U.S. under 8 U.S.C.
§ 1182(a)(6)(C)(i). They also presented their waiver argument.

The BIA affirmed the IJ’s ruling. The BIA also ruled that the Petitioners new
arguments were not properly before it because they were not part of its limited remand
order to the IJ and were not raised in their initial appeal. Even so, the BIA affirmed the
IJ’s initial ruling that Lateef’s husband was inadmissible to the U.S. under 8 U.S.C.
§ 1182(a)(5)(A) and that Lateef was inadmissible to the U.S. under 8 U.S.C.
§ 1182(a)(6)(C)(i). The BIA also ruled that Lateef’s husband’s and children’s visas
No. 10-3354 Lateef, et al. v. Holder Page 6

would be considered revoked “as of the date of [their] approval,” pursuant to 8 C.F.R.
§ 1205.1(a), when it affirmed that Lateef had abandoned her LPR status. Accordingly,
as a matter of law, Lateef’s husband and children never had valid entry visas. The BIA
did not specifically address Lateef’s waiver argument. But since the IJ ruled that
Lateef’s material misstatement would be irrelevant if she had not abandoned her LPR
status, the BIA indirectly affirmed the IJ’s decision on Lateef’s waiver argument when
it ruled that the IJ correctly analyzed the abandonment issue.

II.

Where, as here, the BIA affirms an IJ’s ruling and adds its own comments, “we
review both the IJ’s decision and the [BIA’s] additional remarks.” Karimijanaki v.
Holder, 579 F.3d 710, 714 (6th Cir. 2009) (citation omitted). “Questions of law
involving immigration proceedings are reviewed de novo.” Ramaj v. Gonzales, 466 F.3d
520, 527 (6th Cir. 2006). But we give deference to the BIA when it reasonably interprets
immigration statutes and regulations. Karimijanaki, 579 F.3d at 714 (citations
omitted).

The BIA’s order will be upheld if it is supported by substantial evidence. Id. We
cannot reverse the BIA’s ruling just because we would have reached a different decision.
Id. See Hana v. Gonzales, 400 F.3d 472, 475 (6th Cir. 2005) (“we may not reverse the
[BIA] simply because we disagree with its understanding of the facts.”). The BIA’s
ruling can only be reversed if the facts are so conclusive that “any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See Hana,
400 F.3d at 475 (“On judicial review of an order of removal, the Board’s findings of fact
are ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.’” (citing Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001) (quoting 8 U.S.C.
§ 1252(b)(4)(B))). “Rather, we must find that the evidence compels a finding that the
Board was wrong.” Hana, 400 F.3d at 475.

An alien may live in the U.S. as an LPR. 8 U.S.C. § 1101(a)(20). A person with
LPR status may temporarily leave the U.S. and maintain her LPR status if she has not
abandoned her LPR status or has been away from the U.S. for more than 180 days.
No. 10-3354 Lateef, et al. v. Holder Page 7

8 U.S.C. § 1101(a)(13)(C)(i) & (ii); 22 C.F.R. § 42.22(a). If the LPR’s trip abroad is
protracted, she is still admissible to the U.S. if “this was caused by reasons beyond [her]
control and for which [she] was not responsible.” 22 C.F.R. § 42.22(a)(3).

But if that person abandons her LPR status, the BIA may terminate her status
with an order of removal. Karimijanaki, 579 F.3d at 715; 8 C.F.R. § 1001.1(p); 8 U.S.C.
§ 1101(a)(47)(B)(I). Termination of LPR status is effective upon entry of the BIA’s
final order of deportation. 8 C.F.R. § 1001.1(p); 8 U.S.C. § 1101(a)(47)(B)(i).

The government must prove that an LPR abandoned her status by clear and
convincing evidence. Karimijanaki, 579 F.3d at 715; 8 U.S.C. § 1229a(c)(3)(A);
8 C.F.R. § 1240.8(a).

A person with LPR status may petition for entry visas for her family. 8 U.S.C.
§ 1154(a)(1)(A)(viii)(II)(B)(i)(I). If a person’s LPR status is terminated, then all visas
that the person petitioned for are retroactively revoked. 8 C.F.R. § 1205.1(a)(3)(i)(J).
Anyone without a valid visa is inadmissible to the U.S. 8 U.S.C. § 1182(a)(7)(A)(i)(I).

An unemancipated child born to a person with LPR status, who is temporarily
traveling outside the U.S., gains LPR status upon entry to the U.S. with her LPR parent.
8 C.F.R. § 211.1(b). However, if the LPR parent of that unemancipated child abandons
her LPR status then that abandonment is imputed to the child. Karimijanaki, 579 F.3d
at 719.

III.

Whether Lateef and her family may lawfully enter the U.S. depends on her LPR
status. Lateef is not admissible to the U.S. if she abandoned her LPR status. And if
Lateef abandoned her LPR status, her family’s visas are retroactively revoked.
Accordingly, this discussion will focus on Lateef’s LPR status since it is indisputable
that Lateef’s misrepresentation would be immaterial, that her husband would not need
a labor certificate, that her family’s entry visas would be valid and that her daughter
would maintain her LPR status if Lateef has not abandoned her LPR status.
No. 10-3354 Lateef, et al. v. Holder Page 8

A.

We examine “the totality of an alien’s circumstances,” Hana, 400 F.3d at 476,
to determine if she has abandoned her LPR status, “including the location of the alien’s
family, property, and job, and of course the length of the alien’s trip(s) abroad but also
other evidence in the record demonstrating the alien’s intent with regard to maintaining
her LPR status.” Karimijanaki, 579 F.3d at 715 (quotations and citation omitted). “The
alien’s intent is measured by an objective standard.” Id. (citing Singh v. Reno, 113 F.3d
1512, 1515 (9th Cir. 1997) (“An alien’s desire to retain his status as a permanent
resident, without more, is not sufficient; his actions must support his professed intent.”)).
“However, an individual with LPR status may also abandon that status by unintentional
acts.” Id. (citing In re Duarte, 18 I. & N. Dec. 329, 332 n.3 (BIA 1982) (“Lawful
permanent resident status may . . . be lost through abandonment, intentional or
unintentional[.]”)).

Whether an LPR’s trip aboard is temporary depends on “if (a) it is for a relatively
short period, fixed by some early event; or (b) . . . will terminate upon the occurrence of
an event that has a reasonable possibility of occurring within a relatively short period of
time.” Id. (quotations and citations omitted). See also Hana, 400 F.3d at 476 (“[W]hen
the visit relies upon an event with a reasonable possibility of occurring within a short
period of time . . . the intention of the visitor must still be to return within a period
relatively short, fixed by some early event.” (quotation and citation omitted)).

B.

When she attempted to enter the U.S. with her family in February 2001, Lateef
did not own property or have a job in the U.S. Her parents and brothers were in the U.S.
But the family members that Lateef had spent the majority of her time with since she
initially immigrated to the U.S. were coming with her from Pakistan. Indeed, Lateef
spent approximately sixty-five percent of her time in Pakistan after she obtained her LPR
status.
No. 10-3354 Lateef, et al. v. Holder Page 9

Looking “through the deferential lens required for the ‘intrinsically fact-specific’
issues of abandonment and temporary visits, the evidence of record, as articulated
accurately and analyzed thoroughly by the IJ and [the BIA], supports their rulings that
petitioner [Lateef] abandoned her LPR status and did not take a temporary visit abroad.”
Karimijanaki, 579 F.3d at 718 (citation omitted).

Although Lateef’s initial trip abroad could be considered temporary because it
ended upon the occurrence of an event, i.e., her graduation from medical school, all of
her subsequent trips abroad were not “for a relatively short period, fixed by some early
event” or ended “upon the occurrence of an event that has a reasonable possibility of
occurring within a relatively short period of time.” Id. at 715 (quotations and citations
omitted). Her final trip to Pakistan, which lasted a year and three months, shows that she
abandoned her LPR status. The trip occurred because of her daughter’s behavioral
problems and ended three months after her family was granted entry visas even though
she wanted to return to the U.S. “as soon as possible.” This protracted journey abroad
was over 180 days and “was [not] caused by reasons beyond [her] control.” 8 U.S.C.
§ 1101(a)(13)(C)(ii); 22 C.F.R. § 42.22(a)(3).

Lateef argues that her case is like the situation in Hana where we ruled that the
petitioner had not abandoned her LPR status. 400 F.3d at 473-74. The petitioner in
Hana was an LPR from Iraq and made trips to her native country during the reign of
Saddam Hussein. Id. at 474. Like Lateef, the petitioner in Hana spent the majority of
her time in her native country, expressed a desire to emigrate to the U.S. with her family
and believed her family’s immigrant petitions would be granted in a relatively short
period of time. Id.

But that is where the similarities end. The Hana petitioner was coerced into
returning to Iraq by her government employer just two months after she emigrated to the
U.S. and applied for LPR status for her family. Id. She stated that if she did not return
when her employer summoned her that her children or other family members would be
harmed. Id.
No. 10-3354 Lateef, et al. v. Holder Page 10

The Hana petitioner returned to the U.S. over two years later but shortly before
her re-entry visa expired. Id. She brought $10,000 worth of valuables and cash with her
to purchase a home and a car because she intended to remain in the U.S. and wait until
her children were granted entry visas. Id. However, she returned to Iraq just two
months later to help care for her terminally ill mother-in-law, but not without obtaining
another re-entry visa before she left. Id.

The Hana petitioner attempted to return to the U.S. two years later but Iraqi
officials would not allow her to leave the country. Id. However, she was able to return
to the U.S. two weeks before her re-entry visa expired. Id. INS officials interviewed her
and she stated that “she was returning because her re-entry permit was about to expire
and she ‘did not want to lose [her] green card.’ She also stated that she had a ticket for
a return flight . . ., but that she would not leave the [U.S.] unless she first obtained
another re-entry permit.” Id. But due to the length of her absence from the U.S. and the
fact that, like Lateef, she had never worked in the U.S., owned property, or paid taxes,
INS officials denied her admission to the U.S. because she had “relinquished her LPR
status.” Id. at 474-75.

The BIA noted that the Hana petitioner had only been in the U.S. three months
in the over four-year period of time before the INS refused her admission into the
country. Id. It held that she “‘remained in Iraq for her convenience and choice, that she
was not compelled to remain,’” and that the INS demonstrated that she had abandoned
her LPR status. Id.

We reversed the BIA for several reasons. We acknowledged that the Hana
petitioner was told her family would obtain visas in a relatively short period of time. Id.
at 476. More importantly, we noted that she made every effort to comply with the law.
Id. (“[S]he was clearly under the impression that so long as she returned to the [U.S.]
before the expiration of her re-entry permit, she could travel to Iraq to prepare her family
members for their emigration and not risk losing her cherished LPR status.”). She had
to return and remain in Iraq to protect her family from the brutality of the Hussein
regime and care for her terminally ill mother-in-law. Id. at 476-77 (To keep her family
No. 10-3354 Lateef, et al. v. Holder Page 11

safe until they were granted entry into the U.S., the petitioner “continued her
[government] job [] so that Saddam’s henchman did not harm her family members on
the eve of their emigration.” “[I]t is clear that [the petitioner’s] failure to put down roots
in the [U.S.] was due almost entirely to her desire to help her loved ones safely flee a
brutal totalitarian regime and to her obligation to assist in the care of her terminally ill
mother-in-law.”). And she transferred her assets to the U.S. to help her family transition
to their new life. Id. at 476 (“Another component was transporting her valuables to
America so that she could lay the foundation for her family's life in the [U.S.].”).

Only one of these factors is present in Lateef’s petition. Lateef believed her
family would be able to emigrate with her in a relatively short period of time. But Lateef
made no attempt to comply with the law to maintain her LPR status. In fact, she lied to
INS agents because she knew that she had broken U.S. immigration law. Pakistan is not
a brutal dictatorship like Hussein’s Iraq. Lateef’s daughter had no medical problems and
Lateef did not transfer assets to the U.S. to help facilitate her family’s emigration to a
new life. “Unlike [Lateef], who was traveling freely between two relatively safe
democratic nations, [the Hana petitioner] was acting to protect her family from a
dictatorial regime with an infamous human rights record.” Id. at 477. “[W]hile
[Lateef’s] decision to spend most of [her] time abroad was arguably motivated by
convenience, [the Hana petitioner’s] similar decision was clearly motivated by the safety
and welfare of her family.” Id.

As in Moin v. Ashcroft, 335 F.3d 415, 420-21 (5th Cir. 2003), the evidence paints
a “picture of a person living in Pakistan while taking a few rather short trips to the
United States.”

We appreciate the predicament which confronts immigrants who marry
non-citizens abroad. Because temporary visas are often unavailable and
processing marital visas may take years, they must choose to live apart
or risk losing their permanent resident status . . . . Nevertheless, we must
be guided by the totality of the record . . . . From that perspective, we
cannot say that the evidence is so compelling in [the petitioner’s] favor
that no reasonable person could have made the same findings and
conclusions as the immigration judge.
No. 10-3354 Lateef, et al. v. Holder Page 12

Id. at 421 (citation omitted). Likewise, in this case, the evidence is not so compelling
to find that the BIA was wrong.

PETITION DENIED.
No. 10-3354 Lateef, et al. v. Holder Page 13

______________

DISSENT
______________

JANE B. STRANCH, Circuit Judge, dissenting. This case turns upon whether
Lateef has abandoned her lawful permanent resident (LPR) status. Proving
abandonment is a “heavy burden,” Hana v. Gonzales, 400 F.3d 472, 477 (6th Cir. 2005),
as the Government is required to prove that an LPR abandoned her status by “clear and
convincing evidence,” Karimijanaki v. Holder, 579 F.3d 710, 715 (6th Cir. 2009) (citing
8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a)). The LPR’s intent is measured by an
objective standard and evaluated by her actions in light of the totality of the alien’s
circumstances. Id. After a careful review of the record, I do not find that the evidence
supports a determination of abandonment. I am particularly concerned that the majority
denies the petition without acknowledging that much of Lateef’s absence from the
United States resulted from a United States immigration inspector’s erroneous refusal
to issue proof of permanent resident status for Lateef’s daughter when Lateef attempted
to bring her into the country. I find it neither legally appropriate nor fair to make a
finding of abandonment when several of Lateef’s return trips to Pakistan upon which the
majority relies to hold against her resulted from the error of United States immigration
officials. I do not believe Lateef—along with her husband and two children, whose own
LPR status is dependant upon Lateef’s—should be punished for our government’s errors.

There are only two published Sixth Circuit decisions addressing abandonment
of LPR status, Hana and Karimijanaki. Abandonment was found in Karimijanaki but
not in Hana. I respectfully dissent because I conclude this case falls squarely under
Hana’s clear holding that LPRs may maintain their status when they remain abroad
primarily for the purpose of providing necessary care to family members who expect to
obtain permission to enter the United States within the next few years. 400 F.3d at 477.

In Hana, the petitioner was granted LPR status in May 1992 but returned to her
native country of Iraq two months later to be with her family and help them prepare for

13
No. 10-3354 Lateef, et al. v. Holder Page 14

their emigration, which she believed would take two years, as well as to avoid tipping
off the Saddam Hussein regime to their plans. Id. at 474, 476. Hana returned to the
United States in October 1994—just before expiration of her re-entry permit—with
$10,000 in valuables to give her brother for safekeeping and a purported intention to stay
until her children arrived. Id. at 474. However, she left in December 1994 “in response
to repeated telephone calls from her husband stressing her mother-in-law’s critical health
condition.” Id. She resumed employment in Iraq out of fear of the regime as well as for
living expenses. Id.

Hana did not return to the United States until December 1996—again just before
the expiration of her re-entry permit—although she claimed to have been stopped at the
border on a previous attempt to leave in January 1996. Id. She did not attempt to return
sooner because of her mother-in-law’s health and because she was waiting for a visa for
her son, who arrived here in December 1995. Id. She was denied admission upon
arrival. The Immigration Judge terminated exclusion proceedings after finding her trips
to be “temporary visits abroad,” but the BIA vacated the decision and ordered Hana
deported. Id.

In vacating the order of removal, this Court found it to be “obvious that Hana’s
intent all along was to facilitate her family members’ joining her in the United States
within a few short years, not to throw away [her] LPR status.” Id. at 476-77. This was
the case despite the fact that she remained out of the United States for the “vast
majority” of the four-and-a-half-year period in question (and continued her foreign
employment) due to her care for her sick mother-in-law and desire to help her family
prepare for emigration. Id. As the Hana court explained:

While in many cases these factors would rightly counsel in favor of
finding that an alien had abandoned her LPR status, they do not lead to
that conclusion in this case, where it is clear that Hana’s failure to put
down roots in the United States was due almost entirely to her desire to
help her loved ones safely flee a brutal totalitarian regime and to her
obligation to assist in the care of her terminally ill mother-in-law. The
evidence in this record demonstrates that Hana’s clear intent was “to

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No. 10-3354 Lateef, et al. v. Holder Page 15

return within a period relatively short, fixed by some early event”—the
safe emigration of her family from Iraq, which she expected to occur
anytime within three years. Indeed, to conclude—as did the Board—that
Hana’s absence from the United States for most of the period in question
evidences her intent to abandon her permanent resident status in the
United States would require us also to conclude that Hana intended that
her family should become permanent residents here without her. Nothing
in this record supports such a conclusion.

Id. at 477. Thus, Hana established two distinct bases justifying an extended absence
from the United States: helping loved ones flee a brutal regime and assisting in the care
of a sick relative.

In Karimijanaki, the petitioner was absent from the United States for over seven
years. Her stated purpose was to be with her eldest daughter in Iran because the
daughter was too old to gain LPR status through her mother but was “culturally
forbidden from living alone in Iran as an unmarried woman.” 579 F.3d at 712.
However, we observed that “the undisputed evidence in this case undermines the
legitimacy of Karimijanaki’s articulated rationale” because her daughter was living with
her aunt in 2005 and her other unmarried daughters had previously lived and traveled
alone. We also noted that, unlike in Hana, she took “no affirmative steps” to indicate
her lack of intent to abandon LPR status, she did not make any return trips to the United
States during the period, her husband (and later, two of her children) were living in the
United States, and she admittedly had no intent to reside permanently in the United
States when she attempted to make the re-entry at issue. Id. at 712, 718-19.
Accordingly, this Court agreed with the BIA that “Karimijanaki abandoned her LPR
status and did not take a ‘temporary visit abroad.’” Id. at 719.

In the instant case, the majority explains that the holding in Hana was based on
four factors: the petitioner (1) was told her family would obtain visas in a relatively short
period of time, (2) made every effort to comply with the law, (3) had to return and
remain in Iraq to protect her family from the regime and care for her terminally-ill

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mother-in-law, and (4) transferred assets to the United States to help her family
transition to their new life.1

The majority concedes that the first factor—waiting for family members to obtain
visas—is present here. Hana explicitly held that time spent abroad for this
purpose—even if receipt of the visas is not expected for up to three years—constitutes
“a period relatively short, fixed by some early event.” Hana, 400 F.3d at 476.
Nonetheless, the majority somehow reaches the conclusion that all but one of Lateef’s
trips were not “for a period relatively short, fixed by some early event.” This erroneous
determination is significant because the short period/fixed event test is not merely a
factor in the totality-of-the-circumstances analysis; rather, it is one of the two
determinative tests of whether an absence is a “temporary visit abroad” so as to permit
re-entry of an LPR and foreclose a determination of LPR abandonment. Hana, 400 F.3d
at 476; Karimijanaki, 579 F.3d at 714-15.

While “appreciat[ing] the predicament which confronts immigrants who marry
non-citizens abroad,” the majority relies on the Fifth Circuits decision in Moin v.
Ashcroft for the proposition that such LPRs “must choose to live apart or risk losing their
permanent resident status.” 335 F.3d 415, 421 (5th Cir. 2003). However, Hana, which
rejects this harsh standard and permits LPRs to live with their families while they await
visas in compelling circumstances, is the controlling law of this Circuit. See United
States v. McMurray, 653 F.3d 367, 383-84 (6th Cir. 2011) (McKeague, J., dissenting)
(discussing “our most fundamental principle of stare decisis”). Nothing in Karimijanaki
purported to limit this determination: Karimijanaki lost her status not because her
reasons for remaining abroad were deemed insufficiently important but because “the
undisputed evidence in this case undermines the legitimacy of Karimijanaki’s articulated
rationale.” 579 F.3d at 719. This language obviously suggests that, as in Hana, there

1
I take no position as to whether this four-factor analysis is sufficient to compare Hana and apply
it only to address the majority’s reasoning.

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was some possible rationale which would have justified Karimijanaki’s absences. Cf.
Moin, 335 F.3d at 421.

The majority dismisses the next factor—compliance with the law—with the gross
oversimplification that “Lateef made no attempt to comply with the law to maintain her
LPR status.” Although the only affirmative legal compliance undertaken in Hana
appears to be obtainment of re-entry permits, such permits are not legally required.
8 U.S.C. § 1181(b). Indeed, it is the absence of such a permit or other documentation
which generally triggers the abandonment inquiry in the first place. See Karimijanaki,
579 F.3d at 715. Nowhere in Hana did this Court hold that obtaining a re-entry permit
was a dispositive factor. To the contrary—as indicated by the excerpt from Hana quoted
by the majority on this issue—we relied on the petitioner’s subjective “impression” that
the permit would allow her to maintain her status. Hana, 400 F.3d at 476. In
Karimijanaki, this Court looked not just at whether the petitioner had obtained re-entry
permits but also whether she took “affirmative steps . . . that might indicate her lack of
intent to abandon her LPR status,” such as making visits to the United States. 579 F.3d
at 719. Lateef made several visits and, as will be discussed in detail below, took many
other actions that reveal her intention to permanently reside in this country.

I recognize that Lateef misled border officials by initially telling them upon her
February 18, 2001 entry that she had last been in the United States in July 2000 instead
of November 13, 1999, resulting in a purported absence of 202 days (assuming a July
31 departure) instead of the accurate total of 463 days. Aside from the fact that even the
shorter period is above the 180-day window in which an LPR may safely be absent
without needing re-admission, 8 U.S.C. § 1101(a)(13)(C)(ii), I fail to see how an event
occurring quite literally after Lateef’s absence should warrant a finding that she had
previously intended to abandon her LPR status during that absence. Despite her
dishonesty, Lateef’s statement at the airport was at worst merely a reflection of her
understanding after a long, tiring flight that her previous absence could trigger additional

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scrutiny into the reasons for her previous time abroad. As we review these reasons more
than eleven years later, it appears to me that she was not mistaken.

While highlighting this single incident, the majority completely overlooks two
significant attempts by Lateef to bring her family to the United States in compliance with
the law. First, Lateef sought a temporary visa for her husband to take one part of the
Medical Licensing Examination with her in the United States in 1996, even obtaining
a support letter from a congressman. Lateef’s husband was denied a visitor visa by the
State Department because he was deemed “an intending immigrant” as evidenced by the
fact that “[his] wife, and his most important social tie, is a permanent resident in the
United States.” It is indisputably contradictory and, to my mind, a patent unfairness to
first deny admission on the basis that Lateef and her husband intended to live in America
and then, after they waited patiently to receive the proper immigrant visas, deny
admission again on the basis that they lacked the intent to live in America during that
time.

Second, Lateef attempted to bring her infant daughter to live with her
permanently in the United States by obtaining a travel letter from the embassy in
Pakistan. Although the record is somewhat unclear as to the subsequent events, it
appears that, after Lateef and her daughter arrived in the United States, the immigration
inspector erroneously refused to issue proof of permanent resident status for Lateef’s
daughter and instructed her to consult the INS. Lateef testified that the INS and a private
attorney advised her to file an immigrant petition on her daughter’s behalf. After being
told that it could take several years for her daughter to obtain permanent resident status
and believing that her daughter was not entitled to stay in the Unites States during that
time, Lateef took her daughter back to Pakistan.2 The error of United States immigration
officials caused this return trip and the subsequent return trips Lateef was required to
take in order to care for her daughter. I do not understand how we can hold that times

2
Although there was some debate at oral argument about what Lateef should have done in this
situation, two immigration attorneys and three federal judges were unable to reach a consensus solution.

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Lateef spent abroad as a result of our government’s error are proof that Lateef intended
to abandon her LPR status, let alone categorically dismiss her as having “made no
attempt to comply with the law to maintain her LPR status.”

As for the next factor—motivation for remaining abroad—the majority attempts
to distinguish Lateef’s motivation of alleged “convenience” with the Hana petitioner’s
concern for “the safety and welfare of her family.” Lateef does not dispute that late-
1990s Pakistan was not a brutal dictatorship like mid-1990s Iraq. She disputes, however,
that conditions in Iraq were dispositive of our decision in Hana—accurately so because
fear of the regime was only used to justify Hana’s first visit to Iraq. Hana, 400 F.3d at
474. The second trip was justified expressly by her “response to repeated telephone calls
from her husband stressing her mother-in-law’s critical health condition.” Id. Fear of
the regime was only used to explain why she returned to her Iraqi employment while
already on her second trip. Id. We explained that, because “[Hana] was told that her
children would be granted visas within three years,” she was permitted to “travel to Iraq
to prepare her family members for their emigration.” Id. at 476. “[H]elping out with her
sick mother-in-law and continuing her job” constituted “[p]art of that preparation.” Id.

The majority dismisses Lateef’s decision to return to Pakistan to take care of her
daughter with the terse conclusion that “Lateef’s daughter had no medical problems.”
I disagree and think that the record compels a finding that Lateef’s daughter experienced
both emotional and physical problems that evidence a qualifying need for her mother’s
care. A Pakistani doctor and Consultant Child Specialist wrote of Lateef’s daughter:

Her family consulted me [a] few times besides her regular check ups in
1998 and 1999 for her behavioral problem whenever her mother left her
in Pakistan. She could not adjust well without her mom and I advised the
dad and family to reunite mother and child particularly in November
1999.

This is consistent with Lateef’s testimony that she left the United States after hearing
from her husband that their daughter “is not behaving as she has been when [Lateef was]
there with, with her. She is crying most of the time, not showing any interest in

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anything. She was not eating right.” Lateef explained: “So that was very concerning
for me, so that’s when I decided that it will be too much for her to go through all that.”
Lateef’s daughter “was very happy” when she returned, although “it took her some time
to get back . . . to her normal self.” However, when Lateef returned to the United States
again, “the same thing happened with her, so then I have to go back again for her.”
Similarly, Lateef’s husband testified:

[W]ithin one day [of Lateef’s absence] she was, she was not the same
child. She was behaving totally differently. And she was not eating, not
smiling, crying, where is mom, when mom is coming. We could not
explain to her all these things and I try not to tell my wife in first couple
of days. . . .
And she has to come back, because I guess no mother can stay like that
because she can—I, I don’t know. She’s—it’s very hard for any mother,
I guess, even it’s hard for me to, to satisfy her, because—I mean, as a
[father] I tried my best, because she was my daughter, but, you know, she
spend most of her time with mother. Even we played—I mean, like
father, child, during that two, three months after March, but she was not
as bonded with me as she was with the mother.

These facts are in stark contrast to Karimijanaki, in which all but one family member did
have permission to be in the United States and there was found to be no valid
justification for the petitioner to remain in Iran with the remaining non-admitted adult
daughter. 579 F.3d at 718-19.

I fail to understand how intent to abandon LPR status is demonstrated by
returning to care for a child experiencing what the record establishes to be behavior
problems that include significant emotional and physical issues. Viewed objectively
from the standpoint of a reasonable parent, I find Lateef’s response to her infant
daughter’s problems a more persuasive reason to return to provide care than the reason
found acceptable in Hana, the assistance of the LPR’s husband with his terminally-ill
mother. Cf. Hana, 400 F.3d at 476-77. If the latter is an accepted standard, then we
must recognize that Lateef justified one of her return trips partially on the need to care

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for her ailing grandmother, who passed away just one month after Lateef arrived.
Lateef’s husband testified about the circumstances surrounding this trip to Pakistan:

So doctors told her family that she is in her kind of terminal stages,
anytime, one month, six weeks, we don’t know [when] she may pass. So
if you have any wish, any family to—you know, you can submit—we
don’t have a hospice system in Pakistan. I mean, now I know it’s a
beautiful system here in States. We don’t have anything. So the doctor
just refuse, so they brought her back to home with catheter, with IV fluid
and . . . she was catheterize all the time, kind of semi-comatose, come out
here and there. So when my, my mother-in-law’s brother told [Lateef]
that this is the condition. So [Lateef] said, I have to come, I can’t wait.

Far from being “motivated by convenience,” I believe the record makes clear that Lateef
was “clearly motivated by the safety and welfare of her family” when she made her visits
to Pakistan Id. at 477.

In regard to the final factor—steps to transition to life in America—the majority
states: “Lateef did not transfer assets to the U.S. to help facilitate her family’s
emigration to a new life.” Again, the majority ignores significant portions of the record.
The petitioner in Hana “brought with her from Iraq over $10,000 in gold jewelry and
money, which she gave to her brother in Michigan, so that she could purchase a home
and a car and help provide for her children when they arrived in the United States.”
Id. at 474. As an initial matter, Lateef came to the United States in 1991 with her parents
and siblings when she was twenty-one years old, so it is unclear what assets, if any,
Lateef may have possessed in 2001 that were not already in this country. In fact, Lateef
stated in an affidavit that she brought jewelry “worth about $14,000” into the United
States in 1995 after getting married.

The most important evidence of intent to make a home in America is largely
ignored by the majority. Lateef and her husband expended considerable time and money
to find lasting, gainful employment in the United States. She came here in March
1996 to take Step One of the United States Medical Licensing Examination. This is the
required test to practice medicine in America, and the Government has not contested

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Lateef’s assertion that passing it provides no benefits outside this country. Later that
year during a trip abroad, Lateef and her husband traveled to Thailand to take Step Two
because it was not offered in Pakistan and they wanted to take the test together. After
being unsuccessful on her first try, Lateef retook that portion of the test in the United
States in August 1997. She also traveled to America in June 1998 to apply for residency
programs, January 1999 to take a naturalization exam, and October 1999 in anticipation
of receiving job interviews. She and her husband each spent $6,000-$7,000 on licensing,
certification, and testing fees, and she sent out 60-100 job applications to different
hospitals. I believe this factor weighs far heavier against abandonment than the mere
transportation of valuables to America in Hana, a factor which Lateef also independently
satisfies. Hana’s valuables could have easily been transported back out of the United
States, but the great cost and effort undertaken by Lateef and her husband to secure a
new life in America would serve absolutely no benefit to a future life in Pakistan (or any
other country).

As in Hana, the record here clearly demonstrates that Lateef’s “intent all along
was to facilitate her family members’ joining her in the United States within a few short
years” under the totality of the circumstances. Id. at 476-77. It defies reason to
conclude that Lateef, along with her husband, would have undertaken such onerous steps
and expended so much time and money throughout the time period in question if she had
abandoned her intent to remain an LPR. See Karimijanaki, 579 F.3d at 715 (stating that
courts must consider relevant evidence to evaluate an alien’s intent under an objective
standard); Hana, 400 F.3d at 476 (stating that factors such as length of time abroad and
location of alien’s family should not be considered “to the exclusion of other evidence
in the record demonstrating the alien’s intent with regard to maintaining her LPR
status.”). “[I]t is certainly worth noting that [Lateef’s] efforts to bring her family to the

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United States were ultimately successful,” Hana, 400 F.3d at 477, and they arrived
together in the United States shortly after Lateef’s husband and children obtained visas.3

Looking closely at the entire record under the totality of the circumstances,
considering this Court’s binding precedent, and remembering “the [Government’s]
heavy burden in proving abandonment,” I conclude that “[t]he record before us compels
a finding that there is not clear, unequivocal, and convincing evidence that [Lateef’s]
trips to [Pakistan] constitute abandonment of her LPR status.” See id. The majority
determines, instead, that throughout the time Lateef was abroad providing necessary care
to family members and awaiting permission for them to enter the United States—time
during which she was preparing for a new life here by, among other actions, obtaining
the necessary qualifications applicable only to a medical career here and applying for
jobs here—she was doing so with the intention of abandoning her LPR status. That
makes no sense. The majority’s reasoning leads to precisely the same absurd conclusion
we rejected in Hana: that Lateef had undertaken all these activities while at the same
time intending “that her family should become permanent residents here without her.”
Id. In Hana, (now Chief) Judge Batchelder succinctly rejected such a finding, noting
“[n]othing in this record supports such a conclusion” and emphasizing the point by
explaining that “the alien’s intent cannot be examined in a vacuum that turns a blind eye
to the circumstances he faces.” Id. Likewise here, the record does not support such a
conclusion and the majority achieves its result only by turning a “blind eye” to the
circumstances and record before us. Accordingly, I respectfully dissent.

3
The majority suggests the fact that Lateef and her family waited three months after the visas
were issued in November 2000 to attend two family weddings in November 2000 and January 2001 before
coming to the United States is evidence that the entire stay was open-ended. However, the weddings
themselves presumably constituted events for which Lateef and her family could have temporarily traveled
to Pakistan, so it seems unreasonable to expect them to come to the United States immediately after
receiving their visas only to visit Pakistan shortly thereafter, return to the United States, and then briefly
visit Pakistan again one month later. Significantly, they came to the United States within a few weeks of
the latter wedding.

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