9th Circuit Overturns BIA Finding That LPR Abandoned Status

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

9TH CIRCUIT OVERTURNS BIA FINDING THAT LPR ABANDONED STATUS
Immigrants' Rights Update, Vol.17, No. 5, September 4, 2003

The U.S. Court of Appeals for the Ninth Circuit has reversed a decision of the Board of Immigration Appeals that had found that a lawful permanent resident abandoned his LPR status as a result of repeated trips he made to his home country. On reviewing the evidence and relying on the factual findings of the immigration judge, which the BIA had adopted, the court found that the government failed to establish by clear and convincing evidence that the respondent abandoned his LPR status.

The respondent in this case, Eshghan Khodagholian, is an Iranian national who was admitted to the United States as an LPR in 1993, together with his wife and their two children. On moving to the U.S., the family kept their house and other assets in Iran. They took up residence in the U.S., and the children were enrolled in school, but Khodagholian was employed only sporadically. During the five years following his admission to the U.S. as an LPR, Khodagholian made three trips to Iran. On the first trip he traveled with his family to sell some items and gather documents the children needed for school. The wife and children returned to the U.S. after two months, but Khodagholian stayed two additional months. On the second trip, Khodagholian traveled alone and stayed for five to six months to care for his dying mother and orphaned nephews. On the third trip, Khodagholian returned to Iran to sell the family's house. On arrival in Iran, he was stopped by police and told he could not leave the country until he satisfied a tax bill owing from his sale of a partnership before he immigrated to the U.S. Only after he had been in Iran for 11 months did the government clear him to leave the country, and he ended up staying in Iran for an additional four months. On return to the U.S., he was stopped by inspectors at the airport and charged with having abandoned his LPR status.

At Khodagholian's removal hearing, the immigration judge found that none of the three absences, considered alone, would establish abandonment of residence. However, the IJ noted that the third absence was particularly troubling, both because of its fifteen-month duration and because it lasted four months beyond the date Khodagholian was cleared to leave Iran. The IJ also noted that, although Khodagholian's uncle had sponsored his admission and claimed he would employ him, Khodagholian apparently never worked for him and was only employed sporadically in the U.S. The IJ concluded that the totality of circumstances established that Khodagholian had abandoned his status. On appeal, the BIA adopted the IJ's findings and dismissed the appeal, and Khodagholian filed a petition for review.

On petition for review, the Ninth Circuit found that the government failed to establish that any of the absences were other than a temporary visit abroad. While the fifteen-month stay of the last visit was the most troubling, most of it was involuntary because of the tax bill. Moreover, throughout the five-year period the family retained a U.S. residence, the children were enrolled in school, and the wife was employed in the U.S. While the government argued that the fact that Khodagholian and his family received welfare benefits during this period should also be considered, the court noted that this consideration is not relevant to the issue of whether the respondent abandoned his LPR status. The court concluded that the absences, whether considered individually or in the totality of circumstances, did not establish by clear and convincing evidence an abandonment of LPR status.

Khodagholian v. Ashcroft, No. 02-71317 (9th Cir. July 14, 2003).