Rezvan Karimijanaki v. Eric H. Holder, Jr. ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0313p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
REZVAN GHOLAMHOSSEIN KARIMIJANAKI and X
-
Petitioners, --
HESAMEDDIN NOSSONI,
-
No. 08-4622
,
>
-
v.
-
-
ERIC H. HOLDER, JR., United States Attorney
-
General,
Respondent. -
N
On Petition for Review of an Order
of the Board of Immigration Appeals.
Nos. A45 832 080; A45 832 083.
Argued: August 5, 2009
Decided and Filed: August 28, 2009
Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Marshal E. Hyman, MARSHAL E. HYMAN & ASSOCIATES, PC, Troy,
Michigan, for Petitioners. M. Jocelyn Lopez Wright, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Marshal E. Hyman, Russell
Reid Abrutyn, MARSHAL E. HYMAN & ASSOCIATES, PC, Troy, Michigan, for
Petitioners. M. Jocelyn Lopez Wright, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
GRIFFIN, Circuit Judge. Rezvan Gholamhossein Karimijanaki and her son,
Hesameddin Nossoni, seek review of a decision of the Board of Immigration Appeals (“BIA”
or “Board”) affirming an immigration judge’s (“IJ”) order that they be removed to their
native country of Iran. Because sufficient evidence supports the Board’s and IJ’s rulings that
1
No. 08-4622 Karimijanaki v. Holder Page 2
Karimijanaki abandoned her lawful permanent resident status, her seven-year absence from
the United States was not a temporary visit abroad, her conduct was imputable to Nossoni
(an unemancipated minor during the relevant period), and Nossoni did not automatically
acquire citizenship based upon his father’s naturalization prior to the removal proceedings,
we deny the petition for review.
I.
In October 1997, Karimijanaki and her husband, Ali Nossoni, along with three of
their four children, Golrokh, Farideddin, and eight-year-old Hesameddin Nossoni, were
admitted as lawful permanent residents (“LPR”) pursuant to an immigrant visa petition filed
1
by Ali’s brother in 1986. Their fourth child, Zahra, remained in Iran because she was 21
years old and therefore ineligible for derivative LPR status from her uncle’s petition.
That same year, Ali filed a petition for Zahra to immigrate to the United States as the
unmarried daughter of a lawful permanent resident.
Following his admission, Ali remained in the United States. Karimijanaki,
however, returned to Iran with her children after spending one month in the United
States.2 Her stated purpose in doing so was to care for Zahra, who had no immigrant
visa and was culturally forbidden from living alone in Iran as an unmarried woman.
Although Karimijanaki’s mother and sister lived in Iran, Karimijanaki testified that they
could not serve as Zahra’s chaperones because they did not reside in Tehran, where
Zahra attended a university. According to Karimijanaki, Zahra could neither transfer to
a different school nor live in a dormitory because she was a Tehran resident (the dorms
were reserved for students from outside the region) and employed. Believing that she
could remain abroad for as long as ten years – the valid period of her immigrant visa –
and still retain her LPR status, Karimijanaki intended to remain in Iran until Zahra
received her LPR status, a process she was told would take approximately two years but
which, in reality, took ten.
1
The parties agree that portions of the record incorrectly list January 1997 as the date of
admission.
2
Petitioners’ assertion in their appellate brief that two of the children lived with their father in the
United States from 1997 until 2005 contradicts petitioner Hesameddin Nossoni’s testimony.
No. 08-4622 Karimijanaki v. Holder Page 3
In 2003 or 2004, Golrokh and Farideddin returned to the United States to live
with their father in Michigan, where they attended college. Petitioners Karimijanaki and
Hesameddin Nossoni, however, remained continuously in Iran until their return to the
United States in June 2005. While living in Iran during this approximately seven-year
period, petitioner Hesameddin Nossoni attended school. Petitioner Karimijanaki did not
work but supported herself and her children with money her husband sent from the
United States. In addition, she received some assistance from Zahra. Karimijanaki
owned two apartments in Iran and had a joint bank account with Zahra. She did not own
a home, work, or have a bank account in the United States, and she had no permits
authorizing her re-entry to the United States.
Ali Nossoni traveled twice from the United States to Iran to visit his family. His
trips included a 35-day visit in 1999, and a four- to six-week visit at an unspecified later
date.
Although Zahra had not yet acquired an immigrant visa, petitioners nevertheless
returned to the United States without her in June 2005 so that petitioner Hesameddin
Nossoni, who was then sixteen years old, could avoid mandatory military service in Iran.
Allegedly, the Iranian government did not allow males to leave Iran once they turned
seventeen to insure their availability for military service at eighteen.
Upon their attempted re-entry to the United States in June 2005, Karimijanaki
had an open-ended return ticket to Iran that was valid for one year, but petitioner
Hesameddin Nossoni had a one-way ticket. Karimijanaki told immigration officials that
she intended to stay in the United States for one year, during which time she planned to
resolve Zahra’s visa issue and apply for citizenship. If she could not achieve these goals,
Karimijanaki acknowledged that she “might return” to Iran to re-join Zahra, although
she would “forget the ticket” if required to stay longer in the United States.
Immigration authorities served Karimijanaki and her son with notices to appear
alleging that they had abandoned their permanent residence in the United States and
were subject to removal because they did not have valid visas or entry documents.
Petitioners denied that they had abandoned their residence and were removable, and they
No. 08-4622 Karimijanaki v. Holder Page 4
were granted temporary parole into the United States pending a hearing before an
immigration judge.
Within months of petitioners’ attempted re-entry to the United States,
Karimijanaki’s mother passed away, and her sister, who was retired and had been caring
for her mother, moved to Tehran to live with Zahra. They lived together from 2005 until
2007. In 2005 or 2006, Zahra earned her master’s degree from the Tehran university she
attended.
At the July 20, 2007, merits hearing, both petitioners were represented by private
counsel and were the only witnesses to testify.3 Karimijanaki testified that she had not
left the United States since her return in June 2005, that her husband had obtained his
United States citizenship, and that Zahra had received her immigrant visa through her
father’s petition and was flying to the United States that evening. Ali Nossoni, who
lived and worked previously in Detroit for five years, had accepted employment and
began living in Anaheim, California, approximately two-and-a-half years before the
hearing. Karimijanaki, Golrokh, Farideddin, and petitioner Hesameddin Nossoni,
however, lived in Detroit because the children were attending college in the area.
Petitioner Hesameddin Nossoni also testified that on the day of the hearing, his
unmarried sister Golrokh was traveling by herself in Greece.
In his written opinion, the IJ ruled that Karimijanaki abandoned her LPR status
and that her seven-year absence from the United States was not a “temporary visit
abroad,” imputed her conduct to her minor son, petitioner Hesameddin Nossoni, rejected
his claim that he automatically acquired United States citizenship when his father was
naturalized in 2006, found petitioners removable, and ordered that they be removed to
Iran. Subsequently, the Board dismissed petitioners’ appeal, affirming all of the IJ’s
rulings but not addressing the claim that petitioner Hesameddin Nossoni automatically
acquired citizenship upon his father’s naturalization.
Petitioners timely requested review.
3
Ali Nossoni was present and available to testify at the hearing but was not called as a witness.
No. 08-4622 Karimijanaki v. Holder Page 5
II.
Where the Board affirms the IJ’s ruling but adds its own comments, we review
both the IJ’s decision and the Board’s additional remarks. Gilaj v. Gonzales, 408 F.3d
275, 283 (6th Cir. 2005). A deportability order is valid only if “it is based upon
reasonable, substantial, and probative evidence.” 8 U.S.C. § 1229a(c)(3)(A). The
Supreme Court has defined “substantial evidence” as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion” and “enough
[evidence] to justify, if the trial were to a jury, a refusal to direct a verdict when the
conclusion sought to be drawn from it is one of fact for the jury.” Consolo v. Fed.
Maritime Comm’n, 383 U.S. 607, 619-20 (1966) (defining “substantial evidence” under
the Administrative Procedure Act) (citations omitted). The Court has cautioned that
“something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s
finding from being supported by substantial evidence.” Id. In other words, “[u]nder this
deferential standard, we may not reverse the Board’s determination simply because we
would have decided the matter differently.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir.
2001).
“[A]dministrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary[.]” 8 U.S.C.
§ 1252(b)(4)(B); Huang v. Mukasey, 523 F.3d 640, 651 (6th Cir. 2008). Although legal
conclusions are given fresh review, see Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir.
2006), we give “deference to the BIA’s reasonable interpretation of the statutes and
regulations.” Lin v. Holder, 565 F.3d 971, 976 (6th Cir. 2009) (citing Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843-44 (1984)).
A.
Karimijanaki challenges the Board’s decision affirming the IJ’s rulings that she
abandoned her LPR status and that her more than seven-year absence from the United
States between the latter part of 1997 and June 2005 was not a “temporary visit abroad.”
No. 08-4622 Karimijanaki v. Holder Page 6
1.
“The term ‘lawfully admitted for permanent residence’ means the status of
having been lawfully accorded the privilege of residing permanently in the United States
as an immigrant in accordance with the immigration laws, such status not having
changed.” 8 U.S.C. § 1101(a)(20). An LPR who returns from a visit abroad may be
considered a “returning resident” eligible for re-entry to the United States without
producing a passport, immigrant visa, re-entry permit, or other document. 8 U.S.C.
§ 1101(a)(27)(A); 22 C.F.R. § 42.22(a); 8 U.S.C. § 1181(b). However, to justify those
privileges, the alien must have “departed from the United States with the intention of
returning and has not abandoned this intention” and “is returning to the United States
from a temporary visit abroad and, if the stay abroad was protracted, this was caused by
reasons beyond the alien’s control and for which the alien was not responsible.” 22
C.F.R. § 42.22(a)(2) & (3). In addition, “[a]n alien lawfully admitted for permanent
residence in the United States shall not be regarded as seeking an admission into the
United States . . . unless the alien . . . has abandoned or relinquished that status” or “has
been absent from the United States for a continuous period in excess of 180 days[.]” 8
U.S.C. § 1101(a)(13)(C)(i) & (ii).
The parties agree that where, as here, petitioners have “‘colorable claim[s] to
returning resident status, . . . the [government] has the burden of proving [they are] not
eligible for admission to the United States.’” Hana v. Gonzales, 400 F.3d 472, 475 (6th
Cir. 2005) (quoting Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997)). That burden
requires the government to establish petitioners’ ineligibility for admission by “clear and
convincing evidence.” 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a); Pickering v.
Gonzales, 465 F.3d 263, 269 n.3 (6th Cir. 2006). “[A] decision that an alien is not
eligible for admission to the United States is conclusive unless manifestly contrary to
law[.]” 8 U.S.C. § 1252(b)(4)(C).
In determining whether an alien has abandoned her LPR status, we examine “the
totality of the alien’s circumstances,” 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
No. 08-4622 Karimijanaki v. Holder Page 7
evidence in the record demonstrating the alien’s intent with regard to maintaining her
LPR status.” Hana, 400 F.3d at 476. The alien’s intent is measured by an objective
standard. See Singh, 113 F.3d at 1515 (“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. 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[.]”).
The term “temporary” in “temporary visit abroad” “is not merely an antonym of
‘permanent,’” Singh, 113 F.3d at 1514; rather, a visit abroad is temporary “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.” Hana, 400 F.3d at 476 (quoting and approving Singh, 113 F.3d
at 1514); see also Hana, 400 F.3d at 476 (approving the Second Circuit’s clarification
that “when 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.’”) (quoting Ahmed v. Ashcroft, 286
F.3d 611, 613 (2d Cir. 2002)).
2.
After a thorough analysis, the Board and IJ ruled that Karimijanaki abandoned
her residence and took more than a temporary visit abroad. Supporting those
conclusions, they found that, from the latter part of 1997 until June 2005, Karimijanaki
never lived longer than one month in the United States and neither made a single return
visit to the United States nor applied for a re-entry permit. The IJ also deemed it
significant that, although three of her four children obtained immigrant visas through
their uncle’s petition and her husband remained in the United States, Karimijanaki
nevertheless took all three children back with her to Iran in 1997, where they lived for
an extended five- to seven-year period.
No. 08-4622 Karimijanaki v. Holder Page 8
The Board and IJ noted that when Karimijanaki returned to the United States in
June 2005, her admitted purpose was not to remain in the United States; rather, she
desired to help her son avoid mandatory military service in Iran, resolve her daughter’s
visa issues, and merely apply for citizenship (without staying). After her intended year-
long visit to the United States, Karimijanaki again planned to return to Iran to live with
Zahra, who was then a 29-year-old adult residing with her aunt, until her daughter
obtained an immigrant visa.
The Board agreed with the IJ’s characterization of Karimijanaki’s argument that
cultural norms compelled her to live with Zahra as “overstated.” The IJ noted that
Karimijanaki told an immigration officer that she planned to leave Zahra alone in Iran
during her intended year-long stay in the United States in 2005; that Zahra’s aunt began
living with Zahra two months after Karimijanaki’s June 2005 arrival in the United
States, thereby leaving Zahra alone in Iran for the two months before her aunt joined her;
and that Karimijanaki’s younger, unmarried daughter Golrokh was traveling by herself
in a foreign country on the hearing date. Based upon this evidence, the IJ found that
while Karimijanaki “may have strongly preferred her daughter not live alone, this
preference clearly did not amount to an entirely inflexible prohibition.”
Assuming arguendo that such cultural norms prohibited unmarried women from
living alone in Iran, the IJ rejected Karimijanaki’s contention that Zahra could not live
with her aunt after she finished her bachelor’s degree. The IJ also questioned why
Karimijanaki had to return to Iran to accompany her unmarried daughter in 2005 when
Zahra was not then living alone, but was companioned by her aunt. In other words,
granting that Karimijanaki may initially have been compelled to return to Iran, the IJ
reasoned that “she remained in Iran by choice long after necessity demanded it.”
The IJ was further persuaded by the extent of Karimijanaki’s ties to Iran and the
absence of her contacts with the United States between 1997 and June 2005. In
particular, Karimijanaki had a joint bank account with Zahra, owned two apartments, and
sent her children to school in Iran. She had no home or bank account in the United
States. Although her husband lived and worked in the United States, Karimijanaki never
No. 08-4622 Karimijanaki v. Holder Page 9
traveled to the United States to visit him during the entire seven-year period. Instead,
her husband traveled twice to Iran to visit his family.
Finally, the IJ ruled that Karimijanaki’s absence from the United States was not
a “temporary visit abroad.” Notwithstanding her approximately seven-year stay in Iran
after obtaining LPR status, the IJ found that she intended to remain in Iran until her
daughter married or obtained an immigrant visa. These events, according to the Board
and IJ, did not have a “reasonable possibility” of occurring “within a short time period,”
but their occurrences, if at all, were “indefinite.” The IJ characterized as “completely
unreasonable” Karimijanaki’s belief that Zahra would receive her immigrant visa in two
years because the process took six years at that time, and Karimijanaki had waited
eleven years to acquire her own immigrant visa. Giving Karimijanaki the benefit of the
doubt, however, the IJ reasoned that “[a]lthough [she] may have initially believed it
would only take two years [for Zahra to obtain her immigrant visa], at some point during
the ten-year process, she must have become aware that the process would actually take
much, much longer.” In any event, the IJ concluded that it was “speculative” whether
Zahra would even receive a visa.
Based upon these findings, the IJ ruled that “[i]t was [Karimijanaki’s] two trips
to the United States, not her life in Iran, which constituted temporary visits abroad.” In
addition, her “inten[t] to reside in the United States eventually at some nebulous point
in the future” was “insufficient to show she did not intend to abandon her residency.”
3.
Although Karimijanaki concedes that “[w]hile the amount of time [she] spent in
Iran would, by itself, support a finding of abandonment,” she argues that “the totality of
the circumstances compels” a contrary conclusion. Her central complaint is that “[t]he
BIA severely punished [her] for attempting to fulfill her obligation[]” to care for Zahra
in Iran until Zahra received her own immigrant visa. She acknowledges that “[t]he time
. . . this took was not fixed by a definite end date but there was a reasonable possibility
that it would happen within a short time period.” According to Karimijanaki, legislation
passed by the Congress in 2002 would have protected her family from separation,
No. 08-4622 Karimijanaki v. Holder Page 10
thereby allowing her to avoid having to return to Iran, but she regrets that such
legislation “came too late.” She also asserts that her ties to the United States were
“cement[ed]” because her husband lived and worked in the United States and provided
her with financial support, and her children, Golrokh and Farideddin, lived and studied
in the United States. Moreover, she highlights her husband’s naturalization as evidence
of her own intent to become a United States citizen. “To conclude that Ms. Karimijanaki
intended to abandon her status,” she argues, “would mean that she intended for her three
oldest children and her husband to obtain lawful permanent residency and United States
citizenship without her.” Finally, Karimijanaki asserts that she misunderstood the law,
incorrectly assumed that she could remain abroad for the ten-year period in which her
immigrant visa was valid without jeopardizing her LPR status, and miscalculated the
length of time required for Zahra to receive her immigrant visa.
In support of her arguments, she relies upon our decision in Hana v. Gonzales.
After acquiring her LPR status, Hana immediately filed immigrant visa petitions for her
husband and children and was told that her children would receive visas within three
years. Hana, 400 F.3d at 474. Two months after acquiring her LPR status, Hana
returned to her job in Saddam Hussein’s Iraq where she spent “the bulk of her time” over
a four-and-a-half-year period. Id. at 473-74. Hana testified that if she did not return to
Iraq or her government employer discovered that she was attempting to emigrate to the
United States, the Iraqi regime would threaten to hurt her family or prevent her from
fleeing. Id. at 474. Two years later, Hana returned to the United States with a re-entry
permit, intending to remain permanently in the United States and wait for her children
to join her. Id. She brought with her over $10,000 in gold jewelry and money, with
which she planned to purchase a home and car and help provide for her children when
they arrived. Id. Two months later, however, Hana left for Iraq because of her mother-
in-law’s critical health condition, again obtaining a re-entry permit valid for two years.
Id. Although Hana did not want to continue working in Iraq, she testified that she did
so to provide for her family and because she feared for their safety when her employer
contacted her and told her to return. Id. A year later, she attempted to leave Iraq for the
United States but was turned back at the Iraqi border. Id. Hana traveled successfully to
No. 08-4622 Karimijanaki v. Holder Page 11
the United States just under two years after she last left and two weeks before her re-
entry permit was set to expire. Id. She had a ticket for a return flight to Jordan in four
months but told immigration officials that she would not leave the United States unless
she obtained another re-entry permit and that she planned to stay in the United States
once her children received their visas. Id. Hana did not work, pay income taxes, or own
property in the United States. Id. at 474-75.
Although the IJ ruled that Hana’s trips to Iraq were “temporary visits abroad,”
the Board vacated that decision and ordered Hana deported to Iraq. Id. at 475. The
Board held that Hana abandoned her LPR status because she lived in the United States
for only three months during the relevant four-and-a-half-year period and that she lived
and worked in Iraq, where her family, permanent employment, and property were
located. Id. It also found persuasive that Hana had no property, bank account, doctor,
or driver’s license in the United States, and that she did not pay taxes. Id.
We granted Hana’s petition for review and vacated the Board’s decision, holding
that the evidence was insufficient to support the Board’s ruling that Hana abandoned her
LPR status. Id. at 476. Although we acknowledged that, “in many cases the[] factors
[upon which the Board relied] would rightly counsel in favor of finding that [Hana] had
abandoned her LPR status,” we held that “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.” Id. at 477.
We also found it persuasive that Hana was told that her children would be granted visas
within three years, believed that she could travel between Iraq and the United States
without losing her LPR status so long as she had unexpired re-entry permits, transported
her valuables to the United States to “lay the foundation for her family’s life in the
United States,” “inten[ded] all along . . . to facilitate her family members’ joining her in
the United States,” ultimately succeeded in bringing her family to the United States
solely because of her LPR status, did not intend her family to become permanent
No. 08-4622 Karimijanaki v. Holder Page 12
residents without her, and spent most of her time in Iraq during the relevant period not
for “convenience,” but for “the safety and welfare of her family.” Id. at 476-77.
Petitioners’ reliance upon Hana is misplaced. When examined through the
deferential lens required for the “intrinsically fact-specific” issues of abandonment and
temporary visits, see Chavez-Ramirez v. INS, 792 F.2d 932, 935 (9th Cir. 1986), the
evidence of record, as articulated accurately and analyzed thoroughly by the IJ and
Board, supports their rulings that petitioner Karimijanaki abandoned her LPR status and
did not take a temporary visit abroad. In contrast to Hana, Karimijanaki did not make
any return trips to the United States during her more than seven-year absence from the
United States even though her husband (and later, two of her children) were living,
working, and studying in the United States, and she desired that three of her children
(who had their immigrant visas) grow up and be schooled in their native country until
they were of college age. Even when she returned to the United States in 2005,
Karimijanaki had no intent to reside permanently in the United States; rather, she desired
to travel to Iran to once again reside with her then 29-year-old adult daughter who was
not living alone.
Unlike Hana, the record is devoid of evidence suggesting that Karimijanaki
returned to Iran because she feared for her family’s safety and welfare; rather,
Karimijanaki attempted to justify her initial and intended returns based upon cultural
forces that purportedly prohibited her unmarried adult daughter from living alone in Iran.
However, we need not determine whether cultural reasons or traditions excuse an alien’s
extended absence from the United States and preserve her LPR status because the
undisputed evidence in this case undermines the legitimacy of Karimijanaki’s articulated
rationale: she fails to explain why culture compelled her to return to Iran in 2005 when
her daughter Zahra was not then living alone but was living with her aunt, and why she
permitted her unmarried daughters to live and travel alone at various periods. She also
does not adequately explicate why she took no affirmative steps within a seven-year
period – such as obtaining re-entry permits or making a single visit to the United States
– that might indicate her lack of intent to abandon her LPR status. Even assuming that
No. 08-4622 Karimijanaki v. Holder Page 13
Karimijanaki intended to live abroad until her daughter obtained her immigrant visa or
was married, we agree with the Board and IJ that the occurrence of these events was
speculative and therefore lacked the “reasonable possibility” of occurring “within a short
time period” required to qualify her seven-year absence as a “temporary visit abroad.”
We emphasize that had Congress “intended to allow permanent residents to reenter the
United States and retain their status after ‘all visits abroad that are not permanent’ it
could have done so.” Id. at 936.
For these reasons, we hold that sufficient evidence supports the IJ’s rulings,
affirmed by the Board, that the government proved by clear and convincing evidence
that Karimijanaki abandoned her LPR status and did not take a “temporary visit abroad”
between 1997 and June 2005, and the evidence of record does not compel a contrary
conclusion.
B.
The IJ, affirmed by the Board, imputed Karimijanaki’s abandonment of her LPR
status to her son, petitioner Nossoni, who was a sixteen-year-old unemancipated minor
in June 2005. Although petitioners concede that petitioner Nossoni’s parents’ intent was
properly imputable to him, they contend that the IJ erred in imputing the intent of his
mother, who abandoned her LPR status, rather than the intent of his naturalized father.
“Faced with two equally compelling intents,” they argue, “the [Department of Homeland
Security] could not meet its burden of proving that [petitioner Nossoni] abandoned his
[LPR] status.” Petitioners also complain that “[t]he agency chose the intent that will
lead to the further separation of this family[,]” thereby contravening the law’s purported
purpose of encouraging “family unity.”
Although we have not yet approved the imputation of a parent’s abandonment
of LPR status to the parent’s unemancipated child, we now hold that such imputation
may be allowed consistent with well-established authority. See Miss. Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 48 (1989) (“Since most minors are legally incapable
of forming the requisite intent to establish a domicile, their domicile is determined by
that of their parents.”); Singh v. Gonzales, 451 F.3d 400, 409 (6th Cir. 2006)
No. 08-4622 Karimijanaki v. Holder Page 14
(acknowledging the “BIA’s history of imputing parents’ . . . intent to abandon LPR
status to their minor children”)4; Senica v. INS, 16 F.3d 1013, 1016 (9th Cir. 1994)
(holding that the BIA correctly imputed a parent’s knowledge that she and her children
were not eligible for entry to the United States to her children); Nikoi v. Att’y Gen. of the
U.S., 939 F.2d 1065, 1071 (D.C. Cir. 1991) (affirming district court’s ruling that minors
abandoned their permanent resident status during their “extended absence[s] from the
United States while . . . in the custody and control of their parents” because it “comports
with INS precedents, the regulations that codify them, and the general law governing the
permanent residence of unemancipated minors”); In re Escobar, 24 I. & N. Dec. 231,
234 n.4 (BIA 2007) (“The imputation of a decision to abandon permanent resident status
from a parent to a child is consistent with the above-mentioned longstanding policy that
a child cannot form the intent necessary to establish his or her own domicile.”); Matter
of Zamora, 17 I. & N. Dec. 395, 397 (BIA 1980) (“To the extent that Bauer holds that
an alien can escape the consequences of an ‘entry’ upon returning from such a long
absence simply because he departed under the custody and control of his parents, it is
hereby overruled.”).
However, we have not yet addressed the crucial question regarding which
parent’s intent may be imputed to their unemancipated child when one parent has
abandoned her LPR status but the other has not. In imputing Karimijanaki’s
abandonment of her LPR status to her son, the IJ and Board relied upon Zamora.
Zamora, however, does not answer the question.
As the above-cited cases demonstrate, the imputation rule is based upon the
policy that a child cannot legally form the intent necessary to establish his or her own
domicile. The Restatement (Second) of Conflict of Laws § 22 cmt. d. (1971) provides
that “[a] child’s domicil, in the case of the . . . separation of his parents [where] . . . .there
has been no legal fixing of custody, . . . is that of the parent with whom he lives . . . .”
4
Although Singh held that parents’ fraudulent conduct cannot be imputed to their children, it
explained that “imputing fraudulent conduct – which necessarily includes both knowledge of falsity and
an intent to deceive, . . . is a far cry from imputing knowledge of ineligibility for admission,” or “imputing
the intent to engage in a perfectly lawful act.” Singh, 451 F.3d at 407.
No. 08-4622 Karimijanaki v. Holder Page 15
Cf. 8 U.S.C. § 1431(a)(3) (“A child born outside of the United States automatically
becomes a citizen of the United States when all of the following conditions have been
fulfilled: . . . (3) The child is residing in the United States in the legal and physical
custody of the citizen parent pursuant to a lawful admission for permanent residence.”)
(emphasis added.)
There is no dispute that during the relevant period from 1997 until June 2005,
petitioner Hesameddin Nossoni lived with his mother in Iran and was, at all times, under
her care and physical custody. Even when petitioner Nossoni and his mother returned
to the United States in June 2005, he continued to live with his mother in Michigan
while his father was living in California. There is no evidence in the record that
petitioner Nossoni has ever lived with his father or has even had much contact with him.
The only evidence of Ali Nossoni’s physical connections to his son during the relevant
period are his two approximately month-long visits to Iran over more than seven years
and his attendance at the removability hearing (during which he did not testify). Based
upon this evidence, petitioners’ characterization of both parents’ intent as “equally
compelling” is inaccurate. Under these facts, the decision to impute Karimijanaki’s
abandonment of her LPR status rather than Ali Nossoni’s citizenship to their son was
reasonable. Petitioners’ “family unity” argument is questionable because, although the
immigration laws may share some of the blame for separating this family, it cannot be
ignored that Ms. Karimijanaki and her husband have voluntarily chosen to live apart for
reasons unrelated to immigration.
For these reasons, we hold that, based on this record, the IJ and Board did not err
in imputing Karimijanaki’s abandonment of her LPR status to her unemancipated minor
son, petitioner Hesameddin Nossoni.
C.
Finally, petitioners contend that petitioner Hesameddin Nossoni automatically
acquired United States citizenship when his father was naturalized in April 2006, thereby
mooting the agency’s finding of abandonment and rendering him non-removable. The
IJ ruled that petitioner Nossoni did not acquire citizenship derivatively upon his father’s
No. 08-4622 Karimijanaki v. Holder Page 16
naturalization because he did not, at that time or thereafter, reside in his father’s physical
custody and he had already abandoned his permanent residence. Although petitioners
raised this issue in their appeal to the Board, the Board did not address it.
Generally, where an issue was ruled upon by the IJ and properly appealed to the
Board but not addressed by the Board, the issue is not ripe for our review and should be
remanded for the Board’s consideration. See Matovski v. Gonzales, 492 F.3d 722, 740
(6th Cir. 2007) (citing INS v. Ventura, 537 U.S. 12, 16-17 (2002) (“Generally speaking,
a court of appeals should remand a case to an agency for decision of a matter that
statutes place primarily in agency hands . . . The agency can bring its expertise to bear
upon the matter; it can evaluate the evidence; [and] it can make an initial
determination.”)). However, a remand is not required where such a gesture would be
futile. See Chen v. United States, 471 F.3d 315, 339 (2d Cir. 2006) (“The overarching
test for deeming a remand futile . . . is when the reviewing court can confidently predict
that the agency would reach the same decision absent the errors that were made.”)
(citation and internal quotation marks omitted).
Under 8 U.S.C. § 1431(a)(3), “[a] child born outside of the United States
automatically becomes a citizen of the United States when all of the following conditions
have been fulfilled: . . . (3) The child is residing in the United States in the legal and
physical custody of the citizen parent pursuant to a lawful admission for permanent
residence.” The IJ’s ruling that petitioner Nossoni did not reside in his citizen father’s
physical custody at the time of his naturalization or at any time thereafter is a factual
finding. The Board reviews factual findings for clear error, 8 C.F.R. § 1003.1(d)(3)(i),
and we will not reverse unless a “reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). As already discussed, petitioner
Hesameddin Nossoni lived exclusively with his mother, and there was no evidence that
he ever resided with his father. While petitioners assert that Ali Nossoni always retained
legal custody over his son, they neither attempt to argue nor does the record support a
finding that he resided with him at any relevant time. Therefore, petitioner Nossoni’s
right to derivative citizenship is purely a legal question, and we hold that the IJ did not
No. 08-4622 Karimijanaki v. Holder Page 17
err in ruling that petitioner Nossoni did not acquire citizenship because he did not reside
in his citizen father’s physical custody at the time of his naturalization or at any time
thereafter.5
III.
For these reasons, we deny the petition for review.
5
Our holding renders moot petitioners’ argument that the IJ erred in ruling that petitioner Nossoni
abandoned his LPR status prior to the entry of a final administrative order of removal.