Popovici v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Vasile Popovici, No. 21-541
Petitioner, Agency No. A059-973-500
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 19, 2023**
Portland, Oregon
Before: RAWLINSON and SUNG, Circuit Judges, and MORRIS,*** District
Judge.
Petitioner Vasile Popovici, a native of Romania, petitions for review of a
decision of the Board of Immigration Appeals (“BIA”), dismissing an appeal
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Brian M. Morris, United States District Judge for
the District of Montana, sitting by designation.
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from an order of an Immigration Judge (“IJ”), sustaining the charge of
removability and finding that Popovici had abandoned his lawful permanent
resident status. We have jurisdiction under 8 U.S.C. § 1252. We deny in part
and dismiss in part the petition.
1. Popovici argues that the BIA erred in affirming the IJ’s finding that
he abandoned his lawful permanent resident (“LPR”) status. Whether Popovici
abandoned his LPR status “is an intrinsically fact-specific question and is
therefore reviewed under the substantial evidence standard.” Khodagholian v.
Ashcroft, 335 F.3d 1003, 1006 (9th Cir. 2003). The government bears the
burden of proving by “clear, unequivocal, and convincing evidence that
[Popovici]’s status has changed.” Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir.
1997). Combining our standard of review with the government’s burden, we
must decide “whether substantial evidence supports a finding by clear,
unequivocal, and convincing evidence that [Popovici] abandoned his lawful
permanent residence in the United States.” Khodagholian, 335 F.3d at 1006.
To qualify for re-entry as a returning resident alien, a noncitizen “must be
returning to an ‘unrelinquished lawful permanent residence’ after a ‘temporary
visit abroad.’” Singh, 113 F.3d at 1514 (quoting Matter of Huang, 19 I. & N.
Dec. 749, 753 (1988)). A temporary visit abroad is one that is for “a period
relatively short, fixed by some early event,” or “will terminate upon the
occurrence of an event having a reasonable possibility of occurring within a
relatively short period of time.” Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th
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Cir. 1986). If “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 his visit.” Id. Factors relevant to whether a
noncitizen held a continuous, uninterrupted intent to return to the U.S. include
the noncitizen’s family ties, property holdings, and business affiliations within
the United States; the duration of residence in the United States; family,
property, and business ties in the foreign country; the noncitizen’s conduct
outside the United States, including whether he conferred with American
officials during his visit about retaining his status; and the noncitizen’s purpose
in departing the United States. See id.; Khodagholian, 335 F.3d at 1007; Huang,
19 I&N Dec. at 753.
In this case, between the time when Popovici first came to the U.S. in
2009 and his attempt to return in 2016, Popovici spent approximately five
weeks in the U.S. He never established a residence in the U.S., staying instead
with his brother. He never filed taxes in the U.S., and never opened a bank
account. When he returned to Romania in 2010, he became involved in several
multi-million Euro projects as a volunteer, consultant, and project manager.
Considering these circumstances, substantial evidence supports the IJ’s finding
by clear, unequivocal, and convincing evidence that Popovici abandoned his
LPR status. See Singh, 113 F.3d at 1515; Huang, 19 I&N Dec. at 756–57.
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Popovici argues that he had a continuous, uninterrupted intention to
return to the U.S. during the entirety of his return to Romania but was prevented
from returning due to the ongoing projects at his foundation, which ended in
2015. The delay caused by those ongoing projects is not the type of delay
outside of a noncitizen’s control that we have found to be consistent with an
intent to return. Compare Chavez-Ramirez, 792 F.2d at 937–38 (noncitizen’s
decision to remain in Mexico for two and a half years after her ill mother no
longer needed her weighed in favor of finding abandonment) with
Khodagholian, 335 F.3d at 1005, 1007 (noncitizen’s 15-month trip to Iran was
not evidence of abandonment when noncitizen was required to remain in Iran
involuntarily because of an unpaid tax bill). But even if Popovici intended to
return to the U.S., his “desire to retain his status as a permanent resident,
without more, is not sufficient; his actions must support his professed intent.”
Singh, 113 F.3d at 1515 (citing Huang, 19 I&N Dec. at 753). Because
substantial evidence supports the IJ’s finding, we deny the petition as to
Popovici’s claim of error related to the abandonment of his LPR status.
2. Popovici raises a due process claim for the first time on appeal. His
claim relates to his attorney’s failure to request voluntary departure. As a
prudential matter, we generally require a noncitizen who argues ineffective
assistance of counsel to exhaust his administrative remedies by first presenting
the issue to the BIA. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.
2000). To do otherwise deprives this court of the benefit of the agency’s
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expertise and a fully developed record. Id. “A motion to reopen is the
procedural vehicle through which a petitioner may bring, usually for the first
time, an ineffective assistance of counsel claim before the BIA.” Id.at 1123. We
therefore dismiss the petition as to Popovici’s claim of ineffective assistance of
counsel.
PETITION DENIED IN PART, DISMISSED IN PART.
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