# United Stat es Court of Appeals For the First C ircuit

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 & Friedm an, 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 , Depu ty Di rector, were on brief, for respondent.

February 3, 2005-2- HOWA RD, Ci rcuit Judge . This petition for review of an order o f the Board of Immigration Appeals ("BIA") requires us t o consider under what circumstances a p ermane nt resident may be excludedfrom the United States for ab an doning his permanent resident status. An immigration judge ("IJ") foundthat petitioner FarhadKatebi abandoned his permanent resident status by traveling to Iran and Canada. The BIAsummarily 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 fathe r, a permanent resident of the United States, sponso red Katebi for permanent resi dent sta tus in this country. See 8 U.S.C. § 1153(a)(2)(B). Katebi's permanent resident appl ication was not approveduntil 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 r eturned to Canada in March of 1995 and receivedC an adian 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. Wh il e in Canada, Katebi lived in an apartment with his girl frien d, worked as a taxi driver, maintained a Canadian bank1 On 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. -3- 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 UnitedStates and become gravely ill. In October 1997, Katebi traveledto Iran to visit his father. He stayed i n 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 St at es, Katebi moved to the Boston, Massachusetts area. Once settledin Massachusetts, he worked as a taxi driver.

I n O ctober 1998, Katebi's father died, and Katebi returnedto Iran to a tt end the funeral. He returned to Boston in late February 1999 and was interviewed by Immigr ation and Naturalization Service ("INS") agents at Logan Airport. The agents concludedthat Katebi had abandoned his permanent resident status. 1 They permitted him to enter the United States but did not formally admit him. The IN S subsequently placed him in exclusion proceedings.

At the conclusion of these proceedings, an IJ ordered Katebi removed to Canada bec ause he had abandoned his lawful-4-

permane nt re sident 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. B ecause t here 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 affirm s the IJ' s de cision, we review the IJ's decision directly. See Que vedo v . Ashcroft , 336 F.3d3 9, 43 (1st Cir. 2003). Because we face the fa ct- intensive question of whether Katebi abandoned his permanent residence status, we review the IJ's decision under the substantial evidence test. See Khodagholian v. Ashc roft , 33 5 F.3d 1003, 1006 (9th Cir. 2003); Moin v. Ashcroft , 335 F.3d 415, 418 (5t h Cir . 2003). Substantial evidence exists if the IJ's d ec ision is "supportedby reasonable, substantial, andprobative evidence on the recordconsideredas 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; h owe ver, other circuits have addressed the governing legal framework. Returning permanent residents are permitted to reenter the country after foreign travel. See Aleemv. Perryman , 114 F.3d 6 72 , 676 (7th Cir. 1997). To qualify as a returning permanent resident, the resident "must have-5-

acquiredlawful permanent resident status . . ., must have retained that status fromthe tim e that [he] acquired it, and must be returning to an unrelinquished lawful permane nt res idence after a temporary visit abroad." Moin , 335 F.3d at 418 (quoting Matter of H uang , 19 I. & N. Dec. 749, 753 (BIA 1988)). If, ho wever, th e resident is not returning from"a temporary visit abroad," he will be dee med t o have abandoned permanent resident status and be excludedfrom the United States. See Aleem , 114 F.3d at 67 6. Therefore, the determinative question is whether Katebi' s tr ips constitute "temporary visits abroad."

While the term "temporary visit ab road " is "inherently nebulous," id. at 677 (internal citations omitted), there is general agreement that

a permanent resident returns from a temporary vi sit 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 po ssibility of occurring within a relatively short period o f time. If as in (b), the length of the visit is contingent upon the occurrence of an event and is not fixedin time and if the eve nt does not o ccu r within a relatively short period of time, th e visit will be considered a tem porary visit abroad only if the alien has a continuous, uninterrupted int ent ion to return to the Un i ted States during the entirety of his visit. Chavez-Ramirez v. INS , 792 F.2d 932, 93 6- 37 (9th Cir. 1986) (internal quotations and citations omitted); see also Khodagholian ,-6-

335 F.3d at 1006-07; Aleem , 114 F.3dat 677. Ultimately, the issue is one of intent. See Ahmedv. Ashcroft , 286 F.3d 611, 613 (2d Cir. 2002) (per curiam) (cit ing Unit ed 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 UnitedStates within a relatively short period of time." Singh v. Reno , 113 F.3d 1512, 1514 (9th Cir. 1997). Nonetheless, "wha t 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 i f he extends his trip beyond a relatively short perio d; the ke y remai ns wh ether 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, pro pe rty holdings, and business affiliations wit hi n the United States, and the alien's family, property, and business ties in the foreign country. See Moin , 335 F.3dat 419. An applicant's de sire to maintain his permanent resident status, without more, is insufficient; the alien's intent must be supportedby his actions. See Singh , 113 F.3d at 1514-15.

The IJ concluded that Katebi's actions, commencing with his retu rn to Canada in March of 1995, indicated his intent t o abandon his permanent resident status in the United States in favor2 Up to this point, Katebi had lived in Canada continuously

si nce 1989, except for the fewer than three months that he ha d lived in the United States. -7- of resi dence 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 ca me to the United States in January 1995 after receiving permanen t resident status. But after obtaining this status , Katebi stayed in the United States for fewer than three months. D uring that time, he lived in Florida and worked briefly

as a security guard. Other t han t his brief period of employment, Katebi did not work in the United States between 1995 and 1998. He

ow ned no prope rty and did not pay taxes in 1996 and 1997. Katebi does h ave two brothers who are United States citizens, but h e testified that he rarely saw them.

By contrast, after returning to Canada in March 1995, Katebi establ ished (or more likely resumed) significant ties with that country. 2 He rented an apartment where he lived with his girlf riend; he worked as a taxi cab driver; he maintained a ban k account; he purchased and reg istered 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 wi th him r esuming his prior residency than with him making a "temporary visit."3 The 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 la w before t he 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 andinconsistent 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 UnitedStates because he was only there to await the granting of his Canadian citizenship applica tion and to obtain a passport. This argument is unpersuasive for several reasons. Fir st, proo f that Katebi was actively pursuing more fav orable immigration status in Canada could be considered itself suggestive of Katebi's ultim ate intent to abandon his permanent resident status in the United States in favor of residency in Cana da . 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 p asspor t, 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 fromthe 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,-9-

beginning in 1998, Katebi decidedthat he wanted to live permanently in the UnitedStates. But this evidence does not undermine the IJ's conclusion that Katebi had p reviously abandoned his permanent resident status in the United States.

Petition denied .