Mahmoud v. Barr ( 2020 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 19-1777
    WISSAM MAHMOUD,
    Petitioner,
    v.
    WILLIAM P. BARR, ATTORNEY GENERAL,
    Respondent.
    PETITION FOR REVIEW OF AN ORDER OF
    THE BOARD OF IMMIGRATION APPEALS
    Before
    Lynch, Thompson, and Kayatta,
    Circuit Judges.
    Randy Olen for petitioner.
    Victoria M. Braga, Trial Attorney, Office of Immigration
    Litigation, with whom Joseph H. Hunt, Assistant Attorney General,
    Civil Division, and Cindy S. Ferrier, Assistant Director, Office
    of Immigration Litigation, were on brief for respondent.
    November 30, 2020
    THOMPSON,   Circuit Judge.     Petitioner Wissam Mahmoud
    seeks our intervention in a decision of the Board of Immigration
    Appeals (BIA) dismissing his appeal of an Immigration Judge's (IJ)
    decision finding that Mahmoud had abandoned his status as a Lawful
    Permanent Resident (LPR) in the United States and ordering removal.
    Bound by a deferential standard of review, we must deny Mahmoud's
    petition.
    BACKGROUND
    Mahmoud's Story
    Mahmoud is a Lebanese citizen, admitted to the United
    States as an LPR in 1991.    By 2002, Mahmoud's parents and siblings
    had all lawfully immigrated to the United States, with the bulk of
    them settling in Rhode Island.     From 1991 to 2008, Mahmoud lived
    with his family in what might be appropriately described as the
    family compound.    Consequently, Mahmoud never owned his own home
    in Rhode Island.    During this seventeen-year period, he did pay
    taxes to the United States and had health insurance here.
    In 2008, in the midst of a United States recession,
    Mahmoud, having lost his job managing one brother's restaurant,
    obtained a temporary work visa and moved to Edmonton, Alberta,
    Canada, to work in a restaurant owned by another one of his
    brothers.    While there, he solely paid taxes to Canada and had
    Canadian health insurance.
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    Mahmoud    renewed   his   Canadian   temporary   work   visa
    annually because he says he was unable to find work in the United
    States and, in 2012, he purchased a home in Canada.         In April of
    2013, Mahmoud was visiting the United States when a United States
    Customs and Border Patrol Officer advised him that he should apply
    for a reentry permit for travel to the United States.
    Along the way, Mahmoud met a Canadian citizen of Lebanese
    descent who would become his wife. The couple travelled to Lebanon
    in 2013 where they married in August.     While Mahmoud was there, a
    United States Customs and Border Patrol Officer again advised
    Mahmoud that he should obtain a reentry permit.
    After the wedding, the couple flew back to Canada with
    the professed intention of settling their affairs and returning to
    the United States.    Towards that end (and as before), Mahmoud's
    wife never petitioned Canada on Mahmoud's behalf for any sort of
    permanent immigration status.    But before Mahmoud could order his
    affairs, he fell ill with listeria and viral meningitis and
    required months of hospitalization and rehabilitation in Canada
    from October of 2013 through most of 2014.         The rehabilitation
    program prohibited Mahmoud from traveling, but once he was well
    enough to adequately move about, he says he intended to return to
    the United States.   In July of 2014, Mahmoud's wife gave birth to
    their son, whose birth was registered in Canada and not in the
    United States.
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    By November of 2014, Mahmoud was physically able to
    travel and applied for preclearance to enter the United States.
    He was paroled into the United States in December of 2014 for a
    deferred inspection because the duration of Mahmoud's absence from
    the   United   States   at   that   point   raised   red   flags   about   his
    admissibility.    In total, from 2008 to 2014, Mahmoud returned to
    the United States seven to ten times to visit family and look for
    a job.   The visits, ranging in length from three days to several
    weeks, cumulated in Mahmoud being physically present in the United
    States for 110 days over that six-year period.
    At the hearing before the IJ, the government contended
    that Mahmoud was not admissible into the United States because he
    had abandoned his LPR status.          In support of its position, the
    government highlighted Mahmoud's connections to Canada and the
    short time he spent in the United States.            For his part, Mahmoud
    testified to the facts as summarized above and repeatedly stated
    that he always intended to return to the United States.               In its
    ruling, the IJ concluded that Mahmoud's actions did not demonstrate
    an uninterrupted intent to return to and permanently reside in the
    United States.    Specifically, the IJ held that Mahmoud's extended
    trips out of the country, various connections to Canada, and delay
    in pursuing a reentry permit (even after being warned in April and
    August of 2013 to do so) all evinced that Mahmoud lacked the intent
    to return to the United States as soon as practicable.                 As to
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    Mahmoud's main contention that he was looking for work in the
    United States during his travels, the IJ found that Mahmoud's trips
    were often too short to facilitate a search for work.
    On appeal to the BIA, the Board agreed with the IJ that
    Mahmoud did not demonstrate a continuous, uninterrupted intent to
    return to the country and dismissed the appeal.      The BIA noted
    that Mahmoud's record demonstrated a close connection to Canada
    (which he had maintained for five years when he became too ill to
    travel) and that his trips to the United States were too short to
    allow for a reasonable search for employment.
    Mahmoud now petitions us for relief.   He argues that he
    always wanted to move back to the United States once he had a job
    and the burden is on the government to disprove that.    Carefully
    considering his argument, the record, and the decision of the BIA,
    we deny Mahmoud's petition.
    OUR TAKE
    Standard of Review
    When an applicant for admission has a colorable claim to
    returning to lawful permanent resident status, the government
    bears the burden of proving by "clear, unequivocal, and convincing
    evidence" that he abandoned his status while out of the country
    and is therefore ineligible for admission into the United States.
    Katebi v. Ashcroft, 
    396 F.3d 463
    , 466 (1st Cir. 2005) (quoting
    Singh v. Reno, 
    113 F.3d 1512
    , 1514 (9th Cir. 1997)).    Where "the
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    BIA adopted and affirmed the IJ's decision yet supplied its own
    gloss, we review the tiered decisions as a unit."                   Arias-Minaya v.
    Holder, 
    779 F.3d 49
    , 52 (1st Cir. 2015).                     We review the fact-
    intensive question of whether the government proved by clear,
    unequivocal, and convincing evidence that an LPR abandoned his
    status under the "substantial evidence test."                  Katebi, 
    396 F.3d at 466
    .     "Substantial evidence exists if the [BIA's] decision is
    'supported by reasonable, substantial, and probative evidence on
    the record considered as a whole.'"                 
    Id.
     (quoting INS v. Elias-
    Zacarias, 
    502 U.S. 478
    , 481 (1992)).               To grant Mahmoud's petition,
    the evidence must not only support the contrary finding, but compel
    it.    See Albathani v. INS, 
    318 F.3d 365
    , 372 (1st Cir. 2003).
    Retention or Abandonment of LPR Status
    In most circumstances, an LPR is permitted to reenter
    the    United   States       after   traveling     abroad,     so   long    as    he   is
    "returning to an unrelinquished lawful permanent residence after
    a temporary visit abroad."             Katebi, 
    396 F.3d at 466
     (quoting Moin
    v. Ashcroft, 
    335 F.3d 415
    , 418 (5th Cir. 2003)).                    If, however, the
    trip in question was not a "temporary visit abroad," then the LPR
    will be deemed to have abandoned his permanent resident status.
    
    Id.
         Although       the    notion    of   a    "temporary    visit      abroad"     is
    "inherently nebulous," 
    id.
     (quoting Aleem v. Perryman, 
    114 F.3d 672
    ,    676     (7th    Cir.    1997)),      we    have   identified        two    main
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    circumstances in which a trip abroad qualifies as a temporary
    visit:
    [A]   permanent   resident   returns  from   a
    temporary visit abroad only when (a) the
    permanent resident's visit is for a period
    relatively short, fixed by some early event,
    or (b) the permanent resident's visit will
    terminate upon the occurrence of an event
    having a reasonable possibility of occurring
    within a short period of time. If as in (b),
    the length of the visit is contingent upon the
    occurrence of an event and is not fixed in
    time and if the event does not occur within a
    relatively short period of time, the visit
    will be considered a temporary visit abroad
    only   if   the  alien   has    a  continuous,
    uninterrupted intention to return to the
    United States during the entirety of the
    visit.
    
    Id.
     (quoting Chavez-Ramirez v. INS, 
    792 F.2d 932
    , 936-37 (9th Cir.
    1986)).   Mahmoud agrees that his time abroad was not "relatively
    short" and that his case is therefore best analyzed under part
    (b).   The operative question then is whether the BIA erred when it
    held he did not have "a continuous, uninterrupted intention to
    return to the United States during the entirety of his visit" to
    Canada.   
    Id.
    Merely professing one's intent to maintain LPR status is
    not alone enough.   Id. at 467.   Indeed, intent can be a slippery
    concept, so we evaluate Mahmoud's actions to see if they evince
    his continued intent to return to the United States.   Though time
    abroad can be an informative factor, it is not alone determinative
    in this holistic analysis.   We look at the record to determine if
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    Mahmoud's "activities are consistent with an intent to return to
    the   United   States    as    soon    as   practicable."     Id.   at   466.
    Specifically,    we     look   at     Mahmoud's   "family   ties,   property
    holdings, and business affiliations within the United States" and
    in Canada, where he was living during his time abroad.               Id. at
    466-67 (citing Moin, 
    335 F.3d at 419
    ).
    Mahmoud undoubtedly had strong family connections in the
    United States through the entirety of his time abroad. His parents
    and several siblings lived in Rhode Island and he stayed with them
    during his visits to the United States.            Though Mahmoud also had
    a brother in Canada with whom he lived for some time and he
    eventually married a Canadian citizen, that alone does not minimize
    his familial connections to the United States.          However, Mahmoud's
    other actions as reasonably interpreted by the government weaken
    his contention that he maintained a continual intention to return
    to the United States as soon as practicable.           See Singh, 115 F.3d
    at 1514.       He purchased a home in Canada, paid taxes there,
    maintained employment there, married a Canadian citizen.             During
    that same period (2008 - 2014), Mahmoud only spent 110 days total
    in the United States, and did not pay taxes, have employment, or
    own any property in this country.             Considering that, we can see
    why the BIA did not believe he had a continual intent to make a
    hasty return to the United States.            See Matter of Huang, 
    19 I. & N. Dec. 749
    , 755-56 (BIA 1988) (holding government met its burden
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    of proving LPR relinquished status where she did not maintain a
    residence or have a job in the United States and stayed with
    relatives when visiting occasionally).   Further, even prior to his
    illness, he delayed applying for reentry to the United States,
    despite multiple suggestions to do so from immigration officers.
    The sticking point of all of this, which was highlighted
    at oral argument, is Mahmoud's contention on appeal that he planned
    to return to the United States as soon as he obtained employment.
    But the only evidence in the record supporting this contention is
    Mahmoud's own conclusory testimony that he "look[ed] for work"
    each time he returned to the United States.       Mahmoud did not
    present evidence of any specific efforts he made to find a job,
    nor is it obvious why an experienced restaurant worker could not
    find a job working in a restaurant in the United States for over
    five years.   Mahmoud argues though that the burden below is on the
    government, so he has no obligation to introduce such evidence.
    Mahmoud is not wrong about the burden, but his argument stalls
    when one realizes that the government introduced evidence of
    Mahmoud's extensive connections to Canada.   The government met its
    burden with the weight of that evidence, so it need not disprove
    Mahmoud's unsupported contention that he wanted a job in the United
    States.1   See Katebi, 
    396 F.3d at 466-67
    .
    1It is worth noting that Mahmoud's own communal or cultural notions
    regarding family may well be working to his disadvantage here. He
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    Mahmoud makes two more arguments on appeal that require
    attention. First, he points out that since returning to the United
    States in 2014, he has put his house in Canada on the market, has
    taken a job working for one of his brothers in the United States,
    and has petitioned for his wife and their child to join here.   None
    of this undermines the conclusion that Mahmoud abandoned his lawful
    permanent resident status during his many years of living and
    working in Canada.   Second, Mahmoud argues that the BIA made a
    factual error when it noted that Mahmoud did not move back to the
    United States promptly after his brother opened a restaurant here.
    Mahmoud contends that his brother did not open that restaurant
    until Mahmoud was in the hospital in 2013, so he did indeed move
    as soon as practicable back to the United States to work here.
    The transcript excerpts upon which Mahmoud relies reveal some
    confusion, apparently brought about by the government's vague
    questioning, about which of Mahmoud's brothers is being discussed.
    Neither the IJ's or BIA's decisions rely upon this allegedly
    only resided with family in the United States and never acquired
    title to his own home here. Our case law conflates reliance on
    family for housing with a lack of permanence and does not reward
    those who stay with their families. See Singh, 
    113 F.3d at
    1515-
    16 (collecting and relying upon cases where LPR lost status after
    only staying with family during trips into the United States).
    This is not to say that a different level of cultural understanding
    would make a difference in Mahmoud's case (or many others), but
    this limited convention of understanding intent certainly
    establishes a deep hole for Mahmoud (and others who rely on family
    for housing in the United States) to climb out of.
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    erroneous fact to any meaningful degree and, on the whole, the
    decisions are supported by the record evidence.        See Elias-
    Zacarias, 
    502 U.S. at
    481 n.1 ("To reverse the BIA finding we must
    find that the evidence not only supports that conclusion, but
    compels it.").
    CONCLUSION
    For the foregoing reasons, the petition is denied.
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