Sie sind auf Seite 1von 11

U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Of
f ice ofthe Clerk

5107 leesburg Pike, Swte 2000


Falls Church, Virgm1a 22041

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


Wayland, Land, Esq. .OHS/ICE Office of Chief Counsel - LOS
Land Wayland Law Office 606 S. Olive Street, 8th Floor
Suite 211 Los Angeles, CA 90014
21671 Gateway Center Drive
Diamond Bar, CA 91765

Name: LEI, KA I A 046-594-161

Date of this notice: 3/8/2017

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

Sincerely,

DoYVul- ct1/v'L)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A
Greer, Anne J.
Wendtland, Linda S.

Usertea m: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: Ka I Lei, A046 594 161 (BIA March 8, 2017)


. . ... .,

U.S. Departmebt of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A046 594 161 - Los Angeles, CA Date:


MAR -
8 2017
In re: KA I LEI

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


IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Land Wayland, Esquire

CHARGE:
.'

Notice: Sec. 212(a)(7)(A)(i)(I ), l&N Act [8 U.S.C. l 182(a)(7)(A )(i)(I)] -


Immigrant - no valid immigrant visa or entry document

APPLICATION: Termination

The respondent, a 26-year-old native and citizen of China, appeals from the Immigration
Judge's June 4, 2015, decision ordering her removed from the United States. The appeal will be
sustained, and the proceedings will be terminated.

In June 1998, the respondent and her mother were admitted to the United States as lawful
permanent residents ("LPRs"). They remained in the United States for 1 month before returning
to Macau because they wanted to settle their business and because the respondent's father was
having heart problems (11/19/10 I.J. Dec. at 3 ). The respondent was approximately 9 years old
at the time (Id.). The respondent and her mother traveled to the United States for 3 weeks in
1999 (Id.). However, they had to return to Macau because the respondent's father was again
having health problems (Id.). The respondent was not happy about returning to Macau because
she wanted to study and live in the United States (Id.). As a result, the respondent enrolled in an
English-speaking school in Macau because she wanted to learn the language spoken in the
United States (Id. at 3-4, 6).

The respondent, her mother, and her father returned to the United States for 3 weeks in 2003
(Id. at 4). The purpose of the trip was to look for schools for the respondent (Id.). The
respondent's father also looked for jobs in the United States, but had difficulty securing
employment because of his lack of English language skills (Id.). The family again returned to
Macau because of the respondent's father's health problems (Id.).

From 2003 until 2006, the respondent and her mother resided in Macau (Id.). On March 30,
2006, they applied for admission to the United States as returning residents (Id.). The respondent
was 16 years old at the time (Id.). The respondent had been unhappy in Macau and her mother
had promised that she would bring the respondent back to the United States by the time she was
16 years old (Id.). Although the respondent's mother had a return ticket to Macau, the
respondent's ticket was 1-way.

Cite as: Ka I Lei, A046 594 161 (BIA March 8, 2017)


t .

A046 594 161

Because the respondent and her mother had.been physically absent from the United States for
33 months, they were placed in removal proceedings and charged as arriving aliens, inadmissible
under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act. See section
10l(a)(13)(C)(ii) of the Act. On November 19, 2010, the Immigration Judge determined that the
respondent and her mother abandoned their LPR status and ordered them removed. The
respondent and her mother appealed. On July 29, 2014, this Board dismissed the appeal with

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


regard to the respondent's mother, but remanded the respondent's case to the Immigration Judge
"to conduct further fact-finding to determine whether [the respondent] in fact manifested a
continuous and uninterrupted intention to return to the United States as soon as possible
throughout her time in Macau." On June 4, 2015, the Immigration Judge issued a written
decision again determining that the respondent abandoned her LPR status and ordering her
removed. This appeal followed.

This Board must defer to the Immigration Judge's factual findings, including findings as to
the credibility of testimony, unless they are clearly erroneous. See 8 C.F.R. 1003.l(d)(3)(i);
see also Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012); Matter of Z-Z-0-,
26 I&N Dec. 586 (BIA 2015). We review questions of law, discretion, and judgment de novo.
See 8 C.F.R. 1003. l (d)(3)(ii).

As the respondent was absent from the United States for a continuous period of more than
180 days, she is properly deemed an applicant for admission despite her LPR status. See section
10l(a)(l3)(C)(ii) of the Act; see also Matter of Pena, 26 I&N Dec. 613 (BIA 2015). Where the
only ground of inadmissibility charged in the Notice to Appear pertains to the respondent's
alleged lack of a valid immigrant visa, this Board and the United States Court of Appeals for the
Ninth Circuit have held that the burden is on the Department of Homeland Security ("OHS") to
prove by clear, unequivocal and convincing evidence that the respondent abandoned her LPR
status. See Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988); Matter of Salazar,
17 l&N Dec. 167, 169 (BIA 1979); Matter ofKane, 15 l&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).1

The basic test for evaluating whether a lawful permanent resident has abandoned that status
by virtue of traveling abroad is whether his extended trips outside the United States constitute
"temporary visits abroad." Singh v. Reno, supra. A trip is ''temporary" if it is (1) "relatively
short," or (2) if not short, the respondent had "a continuous, uninterrupted intention to return to
the United States during the entirety of his visit." Id. As to intent, "(t]he issue is not whether the
[respondent] had the intent to return ultimately, but the intent to return to the United States
within a relatively short period." Id. To ascertain an alien's intent to abandon LPR status, the

1 We will follow these decisions as governing precedent, although they do not address the
burden of proof question in light of section 240(c )(2)(A) of the Act, which places the burden of
proof on the alien to establish his entitlement to be admitted if he is an applicant for admission
which the respondent is by virtue of section 10l(a)(l3)(C). See Matter of Rivens, 25 I&N Dec.
623, 626 (BIA 2011) (reserving the burden of proof question at issue here).

Cite as: Ka I Lei, A046 594 161 (BIA March 8, 2017)


'

A046 594 161

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

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


"continuous, uninterrupted intention to return to the United States." Khoshfahm v. Holder,
supra, at 1151 (citing Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th Cir. 1986)).

The question of whether the respondent had a continuous, uninterrupted intention to return to
the United States is a factual one which is subject to review for clear error. See
Khodagholian v. Ashcroft, supra, at 1006 ("[w]hether [the petitioner] abandoned his [permanent
resident status] is an intrinsically fact-specific question); Chavez-Ramirez v. INS, supra, at
934 ("BIA's conclusions concerning an alien's intent are essentially factual"). An inconclusive
record cannot support a finding of abandonment.

Here, it is undisputed that the respondent's 33-month trip outside of the United States was
not "relatively short." The issue therefore, as we articulated in our July 29, 2014, decision, is
whether the DHS has met its burden of demonstrating by clear, unequivocal, and convincing
evidence that the respondent did not have "a continuous, uninterrupted intention to return" to the
United States during the entirety of her time in Macau. Although we previously affirmed the
Immigration Judge insofar as she found that the respondent's mother did not have this intention,
we remanded for further fact-finding with regard to the respondent's intentions. In doing so, we
noted that while a parent's intent to abandon his or her status is generally imputed to an
unemancipated minor child, there are circumstances in which imputation of abandonment of
LPR status may not be appropriate, citing to Khoshfahm v. Holder, supra, at 1152-53. In that
decision, the Ninth Circuit indicated that deviation from the presumption may be warranted, for
example, in the case of an unemancipated minor child who remained in the United States while
the parent returned to the home country. Id. at 1153, n.2.

In the Immigration Judge's June 4, 2015, decision, she determined that the facts in this
case did not warrant deviation from the general presumption that a parent's intent to
abandon his or her status will be imputed to an unemancipated minor child, like the respondent
(6/4/15 I.J. Dec. at 3-4). The Immigration Judge noted that unlike an example cited in
Khoshfahm Holder, supra, the respondent in this case did not remain in the United States
v.

while her mother traveled to Macau for 33 months (Id. at 3). Rather, the two traveled together
(Id.).

The Immigration Judge further noted that even if she examined the respondent's intent
"in the same fact-based manner applicable to an adult LPR abandonment case, the respondent
still would not meet her burden of proof' (6/4/15 I.J. Dec. at 4). The Immigration Judge stated:

The Board stated that further fact-finding was necessary to determine whether the
respondent possessed the requisite intent, which implies that the evidence present
at the time of the Board's decision was, by itself, insufficient to find that the
respondent had met her burden ... However, since the Board's decision, no

Cite as: Ka I Lei, A046 594 161 (BIA March 8, 2017)


AO#> 594 161

further fact-finding has been possible: the respondent chose not to testify despite
being afforded two opportunities, and did not submit additional relevant
documentary evidence before the record was closed.

(Id.).

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


We will sustain the respondent's appeal. First, the Immigration Judge misstates the burden
of proof. The burden of proof is on the OHS, not on the respondent, to establish by clear and
convincing evidence that the respondent did not have a continuous, uninterrupted intent to return
to the United States.

Second, our July 29, 2014, decision was not meant to indicate that the prior factual record
. was insufficient to sustain the burden of proof. Rather, the Immigration Judge's November 19,
2010, decision did not sufficiently analyze the issue of the respondent's intention, separate from
her mother's, in light of Ninth Circuit jurisprudence indicating that an unemancipated minor may
have a separate intent from his or her parents. In this regard, while we agree with the
Immigration Judge that the example cited in Khoshfahm v. Holder, supra, is factually dissimilar
to this matter, we point out that the example was not meant to be exhaustive. Id. at 1153, n.2
("This example simply illustrates the point that . . . imputation of abandonment of LPR status
from parent to child may not be appropriate in every circumstance"). Because the parties did not
submit additional evidence, and the Immigration Judge did not make additional factual findings,
we accept the factual record as characterized in the Im.migration Judge's November 19, 2010,
decision at this juncture.

Here, there are many facts relevant to the respondent's intention to remain in the United
States, as set forth in the Immigration Judge's November 19, 2010, decision (11119/10
I.J. Dec. at 3-6). The respondent and her mother testified that the respondent was unhappy
when she had to return to Macau in 1999. The respondent enrolled in an English-speaking
school in Macau because she intended to return to the United States to study and therefore
needed to speak English fluently. The school was so rigorous that a student could be expelled
for speaking a language other than English while on school grounds. Further, the respondent has
asserted that she never wanted to leave the United States and was compelled to do so by her
parents because she was a minor. We also note that the respondent returned to the United States
in 2006 with a I-way ticket, unlike her mother who had a return ticket to Macau. The respondent
also had 6 large suitcases with all of her possessions when she arrived in the United States in
2006.

In light of these facts, which are not clearly erroneous, we conclude on this record that the
OHS has not met its burden of demonstrating by clear, unequivocal, and convincing evidence
that the respondent did not have "a continuous, uninterrupted intention to return" to the
United States during the entirety of her time in Macau. Rather, the record supports that a
deviation from the general presumption that a parent's intent to abandon his or her status will be
imputed to an unemancipated minor child fits the circumstances in this case. See Khoshfahm v.

Holder, supra, at 1153, n.2 (noting that the presumption that a parent's intent to abandon his or
her status will be imputed to an unemancipated minor child will be upheld "only to the extent
that its application is reasonable and consistent with the 'sensible meaning"' of the Act (internal

Cite as: Ka I Lei, A046 594 161 (BIA March 8, 2017)


A046 594 161

citation omitted)). The facts establish that the respondent always intended to return. to the United
States, and at this juncture, she has now resided in the United States for over 10 years.

Accordingly, the following order is entered.

ORDER: The respondent's appeal is sustained.

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


FURTHER ORDER: The removal proceedings are terminated.

Board Member Patricia A. Cole respectfully dissents without opinion.

Cite as: Ka I Lei, A046 594 161 (BIA March 8, 2017)


--- ---

I
' . I

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

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


File No.: A 046 594161 )
)
In the Matter of: )
)
LEI, Ka I ) IN REMOVAL PROCEEDINGS
)
The Respondent )

CHARGE: Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (2006)


/mmigrant who, at time of application for admission, is not in possession
of a valid, unexpired immigrant visa, reentry permit, border crossing
identification card, or other valid entry document.

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DEPARTMENT:


Land Wayland, Esquire Alicia Crittendon, Assistant Chief Counsel
Law Offices of Land Wayland U.S. Department of Homeland Security
21671 Gateway Center Drive, Suite 211 606 South Olive Street, Eighth Floor
Diamond Bar, California 91765 Los Angeles, California 90014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. Brief Summary of Proceedings

Ka I Lei (the respondent) is a native and citizen of Macau, China. In June of 1998, she
obtained lawful permanent resident (LPR) status through her mother and accompanied her
mother to the United States, where they stayed for one month before returning to Macau. The
respondent returned to the United States for three weeks in 1999 and 2003. She remained in
Macau from 2003 to 2006 (thirty-three months). When she arrived at the Los Angeles
International Airport on March 31, 2006, and attempted to enter the country as an LPR, she was
refused admission for not possessing a valid entry document. 1

At the conclusion of the resulting removal proceedings, the Court held that the
respondent and her mother had abandoned their LPR statuses and ordered them removed to
China. The respondent and her mother subsequently appealed the Court's decision to the Board
oflmmigration Appeals (the Board). The Board upheld the decision as to the respondent's
mother and remanded the case for the submission of additional evidence on the issue of the
respondent's continuous, uninterrupted intent to return to the United States during her thirty-

1 At the time removal proceedings commenced, the respondent was fifteen years old and thus, still an unemancipated

minor. The respondent is now twenty-five years old.

1
I
'
'

three-month stay in Macau. Ka I Lei, A 046 594 161 at 4(BIA July 29, 2014). The respondent
did not submit additional evidence or offer testimony when she appeared in court after the
remand on October 28, 2014, and March 2, 2015.

In the absence of additional evidence, the Court reaffirms its previous decision that the
respondent abandoned her residency and is inadmissible as charged in the Notice to Appear

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


(NTA). Exh. 1.

II. Law & Analysis

1. Abandonment Law

An LPR may "abandon" or lose her status in certain circumstances after returning from a
trip abroad. "[I]n order to 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 [she] acquired it, and must be returning to an unrelinquished lawful permanent residence
after a temporary visit abroad." Singh v. Reno, l 13 F.3d 1512, 1514 (9th Cir. 1997)(quoting
Matter ofHuang, 19 I&N Dec. 749, 753(1981))(internal citations omitted); aff'd Khodagho/ian
v. Ashcroft, 335 F.3d 1003, 1006(9th Cir. 2003). Thus, the proper inquiry to determine whether
an LPR who leaves the United States has abandoned her LPR status is whether the alien's trip
constitutes a ''temporary visit abroad." Id

For a trip to be a "temporary visit abroad" it must fall under one of the two definitional
prongs. First, if the trip is "relatively short, fixed by some early event"(e.g. a daughter's
marriage, a relative's funeral), then the trip is a "temporary visit abroad" and LPR status is not
abandoned. Chavez-Ramirez, 792 F.2d 932, 937(9th Cir. 1986). The respondent's failure to
satisfy the first prong is undisputed on appeal. 2

Second, even when the determining event is not fixed in time, a trip can still qualify as a
"temporary visit abroad" if the event "[had] a reasonable possibility of occurring within a
relatively short period of time." Id. If the event fixing the termination of the trip did not in fact
occur within a relatively short period of time, the visit is a "temporary visit abroad" only if the
alien also had a "continuous, uninterrupted intention to return to the United States during the
3
entirety of [her] visit." Id (internal citations omitted). In Singh, the United States Court of
Appeals for the Ninth Circuit (Ninth Circuit) clarified that "[t]he relevant intent is not the intent
to return ultimately, but the intent to return within a relatively short period" and that "a legal
permanent resident may plan only a relatively short trip." 113 F.3d at 1514. The Ninth Circuit
went on to emphasize that the alien "may extend [her] trip beyond that relatively short period
"only if [she] intends to return to the United States as soon as possible thereafter." Id Factors to
consider in determining whether an alien harbored this continuous, uninterrupted intent to return
within a relatively short period of time include: the alien's testimony, family ties, property
holdings, business affiliations in the United States, duration of the alien's residence in the United

I' 2
The Court found in its previous decision that the respondent's trip was far too long in duration to constitute a
t temporary trip abroad under the first prong.
3 Matter ofZamora clarified that it is the continuous uninterrupted intent to return to live as a permanent resident.

17 l&N Dec. 395, 396 (BIA 1980).


,,

2
States, and the alien's family, property, and business ties in the foreign country. Khodagho/ian,
335 F.3d at 1007 (citing Chavez-Ramirez, 792 F.2d at 937).

The Ninth Circuit has held that unemancipated minors are legally incapable of forming
an intent with regard to their domicile. Martinez-Gutierrez v. Holder, 132 S. Ct. 2011, 2018 (9th
Cir. 2011). Thus, their parenfs continuous, uninterrupted intent to return to the United States (or

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


lack thereof) is examined and imputed to them for the purpose of evaluating abandonment,
provided.the unemancipated minor is in the parenfs custody or control. 4 Khoshfahm v. Holder,
655 F.3d 1147, 1153 (9th Cir. 2011); Huang, 19 I&N Dec. at 750; Zamora, 17 I&N Dec. at 396.

2. The Board's Remand Request

On remand, the Board requested that the Court examine the respondenfs intent separate
and apart from that of her mother, according to the proposed exception to the general imputation
rule outlined in footnote two of Khoshfahm.

Footnote two reads:
..

The inability of a child to form an intent as to domicile does not, however,


support imputation of abandonment of LPR status in every circumstance.
Assume, for example, that LPR parents leave the country, but their LPR child
stays in the United States to attend school or live with a relative. The parents'
length of stay abroad, and their lack of continuous intent to return to the United
States, could result in a finding that they abandoned their LPR status. In that case,
it may be unreasonable to impute the parents' abandonment to the child since the
child never left the United States. In such a case, then, that the child is unable
legally to demonstrate his own intent as to his residence would be of no
significance. This example simply illustrates the point that, although reasonable
in this case, imputation of abandonment of LPR status from parent to child may
not be appropriate in every circumstance. In reviewing BIA decisions, therefore,
we must take care to uphold this doctrine only to the extent that its application is
reasonable and consistent with the sensible meaning of the [INA].

Khoshfahm, 655 F.3d at 1153 n.2 (internal citation and quotation marks omitted).

a. Ap_plying the Featured Example in Footnote Two

The featured example applies in situations where LPR parents leave the United States for
an extended period of time and lack a continuous, uninterrupted intent to return, while their
unemancipated-minor LPR child remains in the United States during the same period. Id

The facts in the respondent's case do not fall within the bounds of the featured example.
The respondent did not remain in the United States while her mother traveled back to Macau.
Rather, she traveled to and from Macau with her mother on each trip. Therefore, the featured
example is not applicable.

4 It is undisputed that the respondent was in the custody of her parents until she reached the age of majority.

3
(

b. Applying Footnote Two Outside of the Featured Example

Beyond the featured example, the Court is unsure how to apply footnote two in the case
at bar. All of the other Ninth Circuit and Board cases involving unemancipated-minor
abandonment strictly adhere to the general rule of imputing the parent's intent to the minor,

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


including Khoshfahm itself. Id at 1153; Huang, 19 l&N Dec. at 750; Zamora, 17 I&N Dec. at
396. In sum, there is no other case applying footnote two that the Court can rely on for guidance.

c. Possible Alternatives Approaches

Even if the Court were willing to take the unprecedented step of examining the
respondent's intent in the same fact-based manner applicable to an adult LPR abandonment case,
the respondent still would not meet her burden of proof based on the evidence before the Court.
The Board stated that further fact-finding was necessary to determine whether the respondent
possessed the requisite intent, which implies that the evidence present at the time of the Board's
decision was, by itself, insufficient to find that the respondent had met her burden. See Jie Fong
Lei Leung, A 046 594 159 (July 29, 2014). However, since the Board's decision, no further fact
finding has been possible: the respondent chose not to testify despite being afforded two
opportunities, and did not submit additional relevant documentary evidence before the record
was closed. As a result, the evidence before the Court remains insufficient to find that the
respondent had a continuous, uninterrupted intent to return to the United States during her travel
abroad.

d. Conclusion

The Court has made every effort to follow the Board's direction on remand but after
considering the evidence and applicable case law finds that it must adhere to the general rule that
the abandonment of the respondent's mother is imputed to the respondent. The respondent does
not fall within the featured example outlined in footnote two of Khoshfahm and has not provided
any additional evidence after remand that might cause the Court to believe her individual intent
was different from that of her mother. As such, the Court sees no reason to alter its original
holding.

ORDER
/

IT IS HEREBY ORDERED that the respondent be REM


charges contained in the NTA.

DATE: -;,t: i'JD/

4
( (

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal
is due with the Board of Immigration Appeals on or before 30 calendar days from the date of the
mailing of this written decision. See 8 C.F.R. 1240.15. EOIR-33 enclosed (respondent only).

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


CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY:
MAIL (M) [ ] PERSONAL SERVIC E((f})
TO: ALIEN [ ) ALIEN c/o ial Officer
TTiREP [!-IS
/ -- ,.
DATE: BY:COURT STA. I -
Attachments: ( ] EOIR-33 ( J EOIR-28
( ] Legal Services List l ) Other