United States Court of Appeals

For the First Circuit

No. 03-2550

FARHAD KATEBI,

Petitioner,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

 Selya, Lipez and Howard, Circuit Judges.

Harvey Kaplan with whom Maureen O'Sullivan, Jeremiah Friedman,

Ilana Greenstein, and Kaplan, O'Sullivan & Friedman, LLP were on

brief, for petitioner.

Greg D. Mack, Senior Litigation Counsel, Office of Immigration

Litigation, with whom Peter D. Keisler, Assistant Attorney General

and Donald E. Keener, Deputy Director, were on brief, for

respondent.

February 3, 2005
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HOWARD, Circuit Judge. This petition for review of an

order of the Board of Immigration Appeals ("BIA") requires us to

consider under what circumstances a permanent resident may be

excluded from the United States for abandoning his permanent

resident status. An immigration judge ("IJ") found that petitioner

Farhad Katebi abandoned his permanent resident status by traveling

to Iran and Canada. The BIA summarily affirmed. We deny Katebi's

petition for review.

Katebi, a native and citizen of Iran, arrived in Canada

in 1989 as a landed immigrant. In 1990, Katebi's father, a

permanent resident of the United States, sponsored Katebi for

permanent resident status in this country. See 8 U.S.C. §

1153(a)(2)(B). Katebi's permanent resident application was not

approved until early 1995. Meanwhile, in 1993, Katebi applied for

Canadian citizenship. 

Katebi entered the United States as a permanent resident

on January 5, 1995. He moved from Canada to Florida where he lived

with one of his brothers (who is a U.S. citizen) and worked as a

security guard. Katebi returned to Canada in March of 1995 and

received Canadian citizenship sometime in 1996. After receiving

citizenship, Katebi remained in Canada for several more months to

await the issuance of his passport, which he received at some point

in 1997. While in Canada, Katebi lived in an apartment with his

girlfriend, worked as a taxi driver, maintained a Canadian bank
1On March 1, 2003, the INS ceased to exist as an agency

within the Department of Justice. Its enforcement functions were

transferred to the Department of Homeland Security. See Homeland

Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002). 

Because the events at issue here predate that reorganization, we

refer to the INS in this opinion.

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account, and purchased and registered a car. He remained in Canada

for several months after receiving the passport. 

Meanwhile, Katebi's father had returned to Iran from the

United States and become gravely ill. In October 1997, Katebi

traveled to Iran to visit his father. He stayed in Iran for two

months. After leaving, he initially went to Canada to retrieve his

car before returning to the United States in mid-January 1998. Upon

returning to the United States, Katebi moved to the Boston,

Massachusetts area. Once settled in Massachusetts, he worked as a

taxi driver. 

In October 1998, Katebi's father died, and Katebi

returned to Iran to attend the funeral. He returned to Boston in

late February 1999 and was interviewed by Immigration and

Naturalization Service ("INS") agents at Logan Airport. The agents

concluded that Katebi had abandoned his permanent resident status.1

They permitted him to enter the United States but did not formally

admit him. The INS subsequently placed him in exclusion

proceedings.

At the conclusion of these proceedings, an IJ ordered

Katebi removed to Canada because he had abandoned his lawful
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permanent resident status in the United States. The IJ based his

abandonment ruling on three independent grounds: (1) Katebi's trips

to Iran; (2) his conduct after returning to Canada in March of 1995;

and (3) his becoming a Canadian citizen. The BIA summarily affirmed

the IJ's order. Because there is substantial evidence to support

the IJ's second ground of decision, we confine our discussion to

that basis.

 Where, as here, the BIA summarily affirms the IJ's

decision, we review the IJ's decision directly. See Quevedo v.

Ashcroft, 336 F.3d 39, 43 (1st Cir. 2003). Because we face the

fact-intensive question of whether Katebi abandoned his permanent

residence status, we review the IJ's decision under the substantial

evidence test. See Khodagholian v. Ashcroft, 335 F.3d 1003, 1006

(9th Cir. 2003); Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir.

2003). Substantial evidence exists if the IJ's decision is

"supported by reasonable, substantial, and probative evidence on the

record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478,

481 (1992). 

We have not previously considered a case concerning the

abandonment of permanent resident status; however, other circuits

have addressed the governing legal framework. Returning permanent

residents are permitted to reenter the country after foreign travel.

See Aleem v. Perryman, 114 F.3d 672, 676 (7th Cir. 1997). To

qualify as a returning permanent resident, the resident "must have
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acquired lawful permanent resident status . . ., must have retained

that status from the time that [he] acquired it, and must be

returning to an unrelinquished lawful permanent residence after a

temporary visit abroad." Moin, 335 F.3d at 418 (quoting Matter of

Huang, 19 I. & N. Dec. 749, 753 (BIA 1988)). If, however, the

resident is not returning from "a temporary visit abroad," he will

be deemed to have abandoned permanent resident status and be

excluded from the United States. See Aleem, 114 F.3d at 676.

Therefore, the determinative question is whether Katebi's trips

constitute "temporary visits abroad."

While the term "temporary visit abroad" is "inherently

nebulous," id. at 677 (internal citations omitted), there is general

agreement that

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

relatively 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 his visit.

Chavez-Ramirez v. INS, 792 F.2d 932, 936-37 (9th Cir. 1986)

(internal quotations and citations omitted); see also Khodagholian,
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335 F.3d at 1006-07; Aleem, 114 F.3d at 677. Ultimately, the issue

is one of intent. See Ahmed v. Ashcroft, 286 F.3d 611, 613 (2d Cir.

2002) (per curiam) (citing United States ex rel. Polymeris v.

Trudell, 49 F.2d 730, 732 (2d Cir. 1931)). "The relevant intent is

not the intent to return ultimately, but the intent to return to the

United States within a relatively short period of time." Singh v.

Reno, 113 F.3d 1512, 1514 (9th Cir. 1997). Nonetheless, "what is

a temporary visit cannot be defined in terms of elapsed time alone."

Aleem, 114 F.3d at 677 (quoting Trudell, 49 F.2d at 732). In other

words, a returning resident does not necessarily abandon his status

if he extends his trip beyond a relatively short period; the key

remains whether his activities are consistent with an intent to

return to the United States as soon as practicable. See Singh, 113

F.3d at 1514. 

Factors to be considered in evaluating the alien's intent

include the alien's family ties, property holdings, and business

affiliations within the United States, and the alien's family,

property, and business ties in the foreign country. See Moin, 335

F.3d at 419. An applicant's desire to maintain his permanent

resident status, without more, is insufficient; the alien's intent

must be supported by his actions. See Singh, 113 F.3d at 1514-15.

The IJ concluded that Katebi's actions, commencing with

his return to Canada in March of 1995, indicated his intent to

abandon his permanent resident status in the United States in favor
2Up to this point, Katebi had lived in Canada continuously

since 1989, except for the fewer than three months that he had

lived in the United States. 

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of residence in Canada. Applying the factors mentioned above and

the substantial evidence standard, we cannot disturb the IJ's

conclusion.

Between 1995 and 1998, Katebi's ties to the United States

were minimal. He came to the United States in January 1995 after

receiving permanent resident status. But after obtaining this

status, Katebi stayed in the United States for fewer than three

months. During that time, he lived in Florida and worked briefly

as a security guard. Other than this brief period of employment,

Katebi did not work in the United States between 1995 and 1998. He

owned no property and did not pay taxes in 1996 and 1997. Katebi

does have two brothers who are United States citizens, but he

testified that he rarely saw them. 

By contrast, after returning to Canada in March 1995,

Katebi established (or more likely resumed) significant ties with

that country.2 He rented an apartment where he lived with his

girlfriend; he worked as a taxi cab driver; he maintained a bank

account; he purchased and registered a car; and he continued to

pursue his Canadian citizenship application. In short, the evidence

supports the view that Katebi's stay in Canada was more consistent

with him resuming his prior residency than with him making a

"temporary visit."
3The INS has suggested that Katebi had to be in Canada because

Canadian law required him to maintain Canadian permanent residency

in order to obtain citizenship. Katebi did not challenge this

interpretation of Canadian law before the IJ. We do not decide

whether Canadian law actually required Katebi to maintain permanent

residency during the pendency of his citizenship application. We

note only that his actions were consistent with such a requirement

and inconsistent with characterizing his stay as a "temporary

visit."

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Katebi contends that his actions in Canada do not

indicate his intent to abandon his permanent resident status in the

United States because he was only there to await the granting of his

Canadian citizenship application and to obtain a passport. This

argument is unpersuasive for several reasons. First, proof that

Katebi was actively pursuing more favorable immigration status in

Canada could be considered itself suggestive of Katebi's ultimate

intent to abandon his permanent resident status in the United States

in favor of residency in Canada. See In re Ruiz-Barba, 13 Immig.

Rptr. B1-9 (BIA 1995). Second, Katebi has not demonstrated that it

was necessary that he be present in Canada for the processing of his

citizenship or passport applications.3 Finally, even after gaining

Canadian citizenship and obtaining the passport, Katebi lived for

several additional months in Canada before leaving for Iran because

of a family emergency. The IJ was permitted to find that at least

from the point that he received his passport, Katebi had no reason

to stay in Canada other than the desire to reside there.

To be sure, the record could support a finding that,
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beginning in 1998, Katebi decided that he wanted to live permanently

in the United States. But this evidence does not undermine the IJ's

conclusion that Katebi had previously abandoned his permanent

resident status in the United States. 

Petition denied.