U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: WAHID, IMRAN

A 047-700-704

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Sturman, David M.
David M. Sturman, APC
16530 Ventura Blvd., Suite 312
Encino, CA 91436

Date of this notice: 7/1/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DCYLltL c

aAA)

Donna Can
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Wendtland, Linda S.
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Imran Wahid, A047 700 704 (BIA July 1, 2015)
/

"

. U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Chmch, Virginia 20530

File: A047 700 704 - Los Angeles, CA

Date:

In re: IMRAN WAHID

'JUL1 - l 2015

APPEAL
ON BEHALF OF RESPONDENT: David M. Sturman, Esquire
CHARGE:
Notice: Sec.

212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. 1182(a)(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document

APPLICATION: Termination

The respondent appeals from an Immigration Judge's August 19, 2013, decision ordering
him removed from the United States. The record will be remanded.
It is undisputed that the respondent, a native and citizen of Pakistan, departed the
United States for Pakistan on February 11, 2008, to avoid criminal prosecution in the State of
California. At the time of the respondent's departure, he was a lawful permanent resident
("LPR") of the United States. Approximately 30 months later, on July 30, 2010, the respondent
arrived at a United States port of entry and sought to enter the United States as a returning LPR.
Section 10l(a)(27)(A) of the Immigration and Nationality Act, 8 U.S.C. 110l(a}(27)(A). Upon
discovering the respondent's pending criminal charges in California, however, the Department of
Homeland Security ("DHS") denied the respondent's request to enter the United States and
instead paroled him into the country to face prosecution. 1
In August 2011, the DHS filed a notice to appear in Immigration Court charging the
respondent with inadmissibility to the United States as an applicant for admission who lacks a
valid immigrant visa or other entry document (Exh. 1). Section 212(a)(7)(A)(i)(I) of the Act,
8 U.S.C. l182(a)(7)(A)(i)(n. The respondent denied that charge, claimed that he is entitled to
be admitted as a returning LPR, and requested termination of the removal proceedings. The
Immigration Judge concluded, however, that the respondent had abandoned his LPR status, and
therefore she sustained the charge and ordered the respondent removed to Pakistan. This timely
appeal followed, in which the respondent disputes the Immigration Judge's determination that he
abandoned his LPR status.
I

On January 10, 2011, the respondent was convicted of engaging in sexual intercourse with a
minor who was under 16 years of age in violation of section 261.S(d) of the California Penal
Code, a felony for which he was sentenced to a 2-year term of imprisonment.
Cite as: Imran Wahid, A047 700 704 (BIA July 1, 2015)

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IN REMOVAL PROCEEDINGS

 A047 700 704

As the respondent argues on appeal, the Immigration Judge's decision does not reflect that
she placed the burden of proof on the DHS to establish that he intended to abandon his LPR
status. Instead, the Immigration Judge evidently found that the length of the respondent's
absence from the United States was sufficient by itself to establish a prima facie case of
abandonment, effectively shifting the burden to the respondent to come forward with evidence to
the contrary (Tr. at 26-27, 34). That is incorrect as a matter of law.3 To ascertain an alien's
intent to abandon LPR status the Immigration Judge must examine not just the amount of time
the individual was absent from the United States, but also the location of his family ties, property
holdings, job, etc. See, e.g., Matter of Huang, supra, at 755-57; Matter of Kane, supra, at
262-63; Khodagholian v. Ashcroft, supra, at 1007. Where, as here, an alien previously granted
LPR status has been absent for a relatively lengthy period of time, the DHS can carry its burden
only if consideration of all these relevant factors establishes that the respondent "clearly" and
"unequivocally" failed to maintain a "continuous, uninterrupted intention to return to the
United States," thereby abandoning his LPR status. Khoshfahm v. Holder, supra, at 1151. An
inconclusive record cannot support a finding of abandonment.
The factual record is not fully developed with respect to most of the facts relevant to the
abandonment inquiry, nor have those facts been examined in light of the properly allocated
burden of proof. The respondent clms that he always intended to return to the United States
2

We do not need to decide in this case which party bears the burden of proof where a returning
LPR is properly charged under a ground of inadmissibility other than section 212(a)(7)(A)(i)(I)
of the Act. Accord Matter of Rivens, 25 l&N Dec. 623, 626 (BIA 2011).

It appears the Immigration Judge may have concluded that the respondent's status as an
applicant for admission under section 10l(a)(13)(C)(ii) of the Act was tantamount to an
abandonment of LPR status. That is not correct. Although an LPR who has been outside the
United States for more than 180 days is properly deemed an "applicant for admission" upon
return, an absence of more than 180 days is not necessarily sufficient to establish that a returning
LPR is inadmissible.

Cite as: Imran Wahid, A047 700 704 (BIA July 1, 2015)

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As the respondent was absent from the United States for a continuous period of more than
180 days, he is properly deemed an applicant for admission despite his LPR status. Section
101(a)(13)(C)(ii) of the Act. Nevertheless, as an alien previously admitted for lawful permanent
residence who possesses a valid, unexpired resident alien card, the respondent is entitled to be
admitted to the United States unless some inadmissibility ground applies. Further, where the
only ground of inadmissibility charged in the notice to appear pertains to the respondent's
alleged lack of a valid immigrant visa, as here, this Board and the United States Court of Appeals
for the Ninth Circuit have held that the burden is on the DHS to prove by clear, unequivocal and
convincing evidence that the respondent abandoned his LPR status. See Matter of Huang,
19 I&N Dec. 749, 754 (BIA 1988); Matter of Salazar, 17 I&N Dec. 167, 169 (BIA 1979); Matter
of Kane, 15 I&N Dec. 258, 264 (BIA 1975); Khoshfahm v. Holder, 655 F.3d 1147, 1151 (9th
Cir. 2011); Khodagholian v. Ashcroft, 335 F.3d 1003, 1006 (9th Cir. 2003); Singh v. Reno,
113 F.3d 1512, 1514 (9th Cir. 1997).2 In essence, the present respondent's prior admission to
LPR status entitles him to a presumption of admissibility which the DHS must rebut.

 A07 700 704

In view of the foregoing, we will sustain the respondent's appeal and remand the record to
the Immigration Judge for further proceedings. On remand, the DHS shall have the burden to
prove by clear, unequivocal and convincing evidence that the respondent abandoned his LPR
status.
ORDER: The appeal is sustained and the record is remanded for further proceedings
consistent with the foregoing opinion and for entry of a new decision.

The respondent argues that the Immigration Judge was hostile to him and that her refusal to
allow his Pakistani doctor to testify by telephone is evidence of "prejudgment" or bias. We find
insufficient evidence of impermissible bias on this record. The record reflects that the
Immigration Judge based her decision on her understanding of the applicable laws and
regulations, her analysis of the evidence of record, and what she deduced from her participation
in the respondent's case. Matter of Exame, 18 l&N Dec. 303 (BIA 1982). Although the
Immigration Judge appears to have misallocated the burden of proof, we have no reason to
believe that this was anything other than an honest mistake. Further, although the Immigration
Judge found much to criticize in the respondent's personal conduct-after all, he did by his own
admission flee the country to forestall prosecution for unlawful sexual intercourse with a
minor-we do not agree that she exhibited the sort of "deep-seated antipathy" toward him that
would make fair judgment impossible. See Liteky v. United States, 510 U.S. 540, 555-56 (1994)
(holding that charges of judicial bias and partiality cannot be established solely by "expressions
of impatience, dissatisfaction, annoyance, and even anger"). The respondent has not shown that
he was denied due process.

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but was prevented from doing so when he suffered back and foot injuries in a car accident in
Pakistan. The Immigration Judge was plainly skeptical of that assertion and denied the
respondent's request to present the telephonic testimony of his doctor in Pakistan-a decision
which the respondent challenges on appeal. On remand, the DHS will bear the burden of
proving that the respondent failed to maintain a "continuous, uninterrupted intention to return to
the United States"; thus, the respondent will be under no further obligation to come forward with
evidence to verify the nature and extent of his injuries. Still, where an issue as important as
abandonment of LPR status is in dispute, the Immigration Judge should not impose unnecessary
limits on the scope of the evidence she is willing to consider. 4 Likewise, the Immigration Judge
should fully consider the materials that have already been accepted into evidence, such as the
physician's declaration and other documents pertaining to the respondent's medical treatment
(Exh. 5).

3
Cite as: Imran Wahid, A047 700 704 (BIA July 1, 2015)

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U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: . A047 700 704 - Los Angeles, CA

Date:

rJU[ -l 2015

In re: IMRAN WAHID

I respectfully dissent and would affirm the Immigration Judge. Contrary to the majority, it is
evident that the Immigration Judge applied the correct burden of proof. The Immigration Judge
relied on Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997), which places the burden of proof on the
DHS by clear and convincing evidence to demonstrate that an alien abandoned lawful permanent
resident status. See I.J. at 4.

Roger A. Pauley
Board Member

Cite as: Imran Wahid, A047 700 704 (BIA July 1, 2015)

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DISSENTING OPINION: Roger A. Pauley, Board Member

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
August19,2013

File: A047-700-704
In the Matter of
)
)
)
)

IMRAN WAHID
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(7)(A)(I) of the Immigration and Nationality Act.

APPLICATIONS:

Admission to the United States.

ON BEHALF OF RESPONDENT: DAVID STURMAN

ON BEHALF OF OHS: JEFFREYS. FREDERICK
ORAL DECISION OF THE IMMIGRATION JUDGE
Respondent in this matter was charged as an arriving alien by the issuance of an
August 22,2011, Notice to Appear. The charges have been sustained by clear and
convincing evidence,both by respondent's admissions and concessions as well as his
testimony and applications before this Court. Respondent is a native and citizen of
Pakistan who arrived in the United States most recently on or about July 30, 2010,
seeking admission as a returning lawful permanent resident after having been absent
from the United States for a continuous period in excess of 180 days. He was paroled
into the United States after inspection and the parole expired, however, on October 29,
2010. Respondent is therefore an immigrant not in possession of a valid unexpired
1

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Immigration visa, reentry permit,border crossing card, or other valid entry document
required by the Immigration and Nationality Act. As such, he is present in the United

Respondent testified before this Court at some length regarding difficulties or

problems that he had in leaving the United States after having lived here for many years
and returning after an absence of approximately two-and-a-half years. In essence,
respondent has testified that he left the United States and he was injured in an accident
in Pakistan and could not return for two-and-a-half years. Respondent has argued that
his accident in Pakistan and his resulting injuries caused him to remain out of the United
States for an extended period of time and he was unable to return to the United States
earlier due to his medical condition. According to respondent's testimony, he left the
United States to avoid criminal prosecution on February 11, 2008. Respondent
admitted he knew that he had a hearing on February 13, 2008,and that he was to start
a trial at that time. The trial was set to begin as stated on February 13,2008. He was
told by his attorney that his bond would be cancelled and he would be put in jail. Rather
than face the consequences of the trial,he jumped aboard a plane, bought a one-way
ticket,quit his job the same day, and left. According to respondent's testimony,his idea
to leave this country was all the fault of his attorney,Simon Aval,because it was Simon
Aval's idea that the respondent leave the United States. Respondent has accepted no
responsibility whatsoever for his decision to jump aboard a plane with a one-way ticket
and not return, even though he knew he had a court date. According to respondent, this
Simon Aval who was his criminal attorney, gave respondent the advice to go away and
not return until he could find out the age of the girl involved in his criminal case.
According to the charging documents,respondent was charged with nine counts,
violation of California Penal Code Section 288 and various sections therein. See Exhibit
A047-700-704

August 19,2013

Immigrant & Refugee Appellate Center, LLC | www.irac.net

States in violation of Section 212(a)(7)(A)(I) of the Immigration and Nationality Act.

2, charging documents. Appeared that respondent was charged with another individual
who was charged with some 16 counts of the same violation, Section 288(a) of the

respondent claimed that his attorney advised him to leave the United States.
Respondent, however, never presented the attorney, never presented any evidence
from the attorney whatsoever that the attorney would tell someone to illegally leave the
country when charges are pending. He may have correctly informed the client that he
was risking going to jail in two days, at which time his bond would be cancelled, but
there is no evidence other than respondent's self-serving testimony that his attorney told
him to flee the country, which would be grounds to disbar this attorney, so it appears in
any event, according to respondent, this Simon Aval kept trying to delay the case, but
respondent wanted to finish it as soon as possible. That testimony is directly
contradicted by his actions, however. Respondent did not want to finish the trial
because he knew he was facing jail time. Instead, he,as stated, fled the country.
Respondent testified at a previous hearing on October 10, that after five or six
months, he decided he wanted to come back and fight the case, but he had a car
accident in June of 2008. Respondent further testified that this Simon Aval told the
respondent he should go away from here and if you go, good luck, that is it. He would
tell the court that you had left on an emergency and, according to respondent, this
Simon Aval wanted more time to prove this girl's age, she was a person from India and
respondent believed she looked older than 16.
As stated, after respondent had lived in Pakistan for four months or so, he had a
car accident on July 25,2008,that would be approximately five months after he had
been in Pakistan. At that time, he was hit by a car and required hospitalization for eight
days from July 25, 2008, until August 3, 2008, although what respondent initially
A04 7-700-704

August 19,2013

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California Penal Code. Section 288(a) is lewd and lascivious behavior. In any event,

testified in a previous hearing, he had been in the hospital for four months.
Respondent presented records from Pakistan that he was treated in a hospital

car accident in Pakistan and also the records as well as respondent's testimony
established that he did have an injury to his foot, that it was surgically repaired, and that
he had a disk compression or spinal disk protrusion that caused him some pain. The
records also reflect that respondent received treatment in the form of physical therapy
and follow-up visits with his doctor in Pakistan. According to respondent, however, he
made a miraculous recovery. He went from being a complete invalid in a wheelchair
unable to walk in June of 2010,to being completely cured a month later, able to walk,
able to get on a plane and come to the United States. His medical records do not
substantiate that, the records he submitted to this Court, and according to the records
submitted at Exhibit 5 and it foes reflect that respondent had some bed rest, he had
conservative treatment for a disk bulge with spinal stenosis. There is nothing in here
that mentions that respondent was completely in a wheelchair and unable to move. Nor
is there anything in his discharge certificates stating that he is unable to walk.
Nevertheless, it does appear that he received some physical therapy for an extended
period of time for an injured back.
In assessing whether somebody has abandoned their status here in the United
States, their lawful permanent resident status, this Court looks to the Ninth Circuit's
decision in Singh v. Reno, 113 F .3d 1512 (9th Cir. 1997) as well as other decisions. In
that decision, the Ninth Circuit held, ' the crucial inquiry is whether Singh's extended
1

trips constitute temporary visits abroad." In short, the critical inquiry in assessing
whether somebody has abandoned their citizenship is whether it is a relatively short
period fixed by some early event or the trip will terminate upon an occurrence of an

A04 7-700-704

August 19, 2013

Immigrant & Refugee Appellate Center, LLC | www.irac.net

there. Court concludes that the records do establish that respondent was treated for a

event that has a reasonable possibility of occurring within a relatively short period of
time. In other words, this Court looks to the intent of the respondent when he departed

no intention of returning to this country. He quit his job, he said he left all his things
here in the United States except for five or six suits, but that is because he lived with his
parents and he did not need to get rid of anything, and everything belonged to the
parents, or what things he might have had could easily remain in the parents' home
here. Respondent is a fugitive from justice or was at that time. He has since been tried
and convicted. As such, this Court concludes that respondent did not make a
temporary visit abroad with a fixed time to return,nor did his trip have a scheduled
termination by a fixed event, but something unreasonable happened that he could not
return. This was a person who fled the country with a criminal trial pending in two days
and he was told he would be jailed. He is a fugitive from justice or was at that time.
See Antonio-Martinez v. INS,317 F.3d 1089 (9th Cir. 2002), discussing a fugitive
doctrine in the Immigration context. Respondent accepts no responsibility whatsoever
for fleeing the United States. He claims it was all his attorney's fault and he was just
taking his advice. But respondent cannot in good faith rely on that defense. He knew
he had a trial, he knew that criminal charges were pending, and he knew that he was
probably going to serve jail time, and rather than face the charges, he took off. His
attorney cannot be faulted for giving him what appears to have been correct legal
advice that he would serve time in jail. Moreover, respondent's explanation before this
Court that the attorney did not know the girl's correct age and needed time to learn the

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the United States. It is clear that respondent's departure from the United States, he had

correct age of the girl in the criminal case lacks credibility. He cannot be convicted
unless they know the girl's age. And the criminal court certainly would not convict
somebody without proper evidence. If the girl's age could not be determined, that was

A047-700-704

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August 19,2013

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all the more reason to stay here and defend. Instead, respondent took off. He did give
up what he had in this country, that is his job at the car rental agency where he had

live, so he did not need to take much, and bought a one-way ticket. As stated, there is
no fixed time for his return within a short timeframe and there is nothing to indicate that
he ever intended to come back. Respondent argues that he thought after he had been
there for oh, four or five months, he might as well come back, but he did not in fact do
so. He instead did suffer this car accident. This Court does not find, however, in the
alternative that this car accident prevented him from returning to the United States for
two-and-a-half years. There is nothing in these medical documents that suggest that
respondent was completely incapacitated and in a wheelchair. The documents do say
that respondent should have complete bed rest for six months. It is not clear, however,
what that means, if that just means he is not supposed to be working. Respondent said
he could walk during these physical therapy sessions, even with his injuries, and he was
in a wheelchair. Should respondent decide to return to the United States, he could get
in that wheelchair and come home with little or no difficulty. A Dr. Hanif also put in his
medical records that respondent stopped receiving treatments from him on January 25,
2010, yet respondent still remained in Pakistan for another six months, at which time
respondent said he came back to fight his case. It is not clear why respondent came
back except maybe he decided facing the case here was better than living in Pakistan
or perhaps because his parents had to cough up additional bail money that might be
lost if he did not come back.
Moreover, respondent was ultimately convicted of a violation of California Penal
Code 261.5(d). See Exhibit 2. That is he was ultimately convicted for sex with a minor
under 16 years of age, even though he testified before this Court his attorney ultimately
A047-700-704

August 19, 2013

Immigrant & Refugee Appellate Center, LLC | www.irac.net

worked for three years, he took his clothes, he went to Pakistan where he had family to

determined that the girl was 1 7 years old. It appears that the respondent has not been
entirely candid before this Court,either to the degree of his disability or to other factors

in another country. Pursuant to Section 26 1 .5, unlawful sexual intercourse with a

person under 1 8 years of age, at Section (d) provides "any person 21 years of age or
older who engages in an act of unlawful sexual intercourse with a minor who is under 1 6
years of age is guilty of either a misdemeanor or a felony, and shall be punished by
imprisonment in a county jail not exceeding one year, et cetera." In short, even though
respondent claimed that his attorney was able to find out that the girl was 1 7 years old,
that is belied by the evidence in the record. So this Court gives little or no credence to
respondent's claim that he took off at his attorney's advice because the attorney needed
more time to find out the age of the girl. This Court does include as stated, however,
that the attorney's advice that respondent was going to jail was accurate and so
respondent fled for that reason. The respondent also had no intention of returning to
the United States at any reasonable time in the future and his visit was not temporary to
Pakistan. It is not clear when respondent would have returned but for this accident and
as stated, even though he had this accident, he still could have returned to the United
States earlier but did not do so. There was nothing in this record to ind icate that he
could not walk and that he spent all his time in the wheelchair as he testified. This
Court concludes that he has exaggerated his case. For example, at Exhibit 5, page 1 2,
Dr. Hanif puts in his patient history report on June 25, 201 0, that the patient,the
respondent, has low back ache, improved and able to continue daily activities. A lot of

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such as this whole age business of this girl, and his attorney telling him to run and hide

people have low backache,but that is not an excuse for remaining outside the United
States for two-and-a-half years.
In any event, considered cumulatively, all the evidence leads to the conclusion

A047-700-704

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August 1 9, 201 3

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that respondent has abandoned his lawful permanent resident status and his application
to enter the United States will be denied.

The charges in the August 6, 2011, Notice to Appear are sustained and
respondent is not admitted to the United States as a lawful permanent resident.

Please see the next page for electronic

signature

CHRISTINE A. SITHER
Immigration Judge

A047-700-704

..:

August 19, 2013

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Accordingly, the following orders shall enter.


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Immigrat ion Judge CHR I S T INE A . BITHER

b i the rc on Octobe r 2 4 , 2 0 1 3 at 1 1 : 1 5 PM GMT

A047-700-704

August 1 9, 201 3