Bigler v. U.S. Atty. Gen.

• Decision Date: 27 March 2006
• Docket Number: No. 05-10971.,05-10971.
• Citation: 451 F.3d 728
• Parties: Yurg BIGLER, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 728

451 F.3d 728

Yurg BIGLER, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 05-10971.

United States Court of Appeals, Eleventh Circuit.

March 27, 2006.

COPYRIGHT MATERIAL OMITTED

Linda Friedman Ramirez, St. Petersburg, FL, for Bigler.

Anthony P. Nicastro, David V. Bernal, Barry J. Pettinato, OIL, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before EDMONDSON, Chief Judge, and BLACK and FAY, Circuit Judges.

PER CURIAM:

This is an immigration case in which Yurg Bigler (Bigler) petitions for review of the Board of Immigration Appeals' ("BIA") final order of removal. The BIA affirmed the immigration judge's ("IJ") oral decision, which found Bigler removable pursuant to 8 U.S.C. § 1227, INA § 237(a)(1)(A). Specifically, the IJ found that Bigler clearly abandoned his status as a lawful permanent resident ("LPR") of the United States and that he did not possess a valid immigrant visa upon re-entry. We affirm and find that substantial evidence supports the ruling.

I. Background

Bigler, a citizen of both Colombia and Switzerland, was originally admitted into the United States by the Immigration and Naturalization Service ("INS")¹ as an LPR on or about July 14, 1968. Bigler was five at the time he acquired LPR status. He resided in the United States with his parents and his brother until 1988, when Bigler's parents asked him to look after the family farm in Colombia. Bigler subsequently moved to Colombia shortly after marrying a Colombian citizen and, while there, had children and purchased a home.

Bigler resided in Colombia for over seven years.² He stated that during the early years of his residency in Colombia, he experienced difficulty re-entering the United States using his LPR card. According to Bigler, this ultimately led him to sign a document at the United States Consulate in Bogota, Colombia on October 31, 1990 abandoning his LPR status, apparently to facilitate re-entry into the United States. The document indicated that Bigler voluntarily abandoned his LPR status as of January 1988. The stated reason for abandonment was that he had not been back to the United States prior to one year. Bigler surrendered his alien registration card at this time, and the Consulate issued him a visitor's visa. This allowed him to re-enter the United States.

Bigler testified that there was some discrepancy with the birth date on his LPR card and that the INS officer told him simply to sign the form and he would receive a visitor's visa. He testified that he understood the visitor's visa would allow him to re-enter the United States, at which point Bigler intended to correct the situation with his birth date. Bigler further testified that he did not know he was abandoning his residence in the United States by signing the form. Instead, he understood that the visitor's visa would allow him to re-enter the United States so that he could correct the birth date on his LPR card.³

Bigler lived in Colombia from January 1988 until December 1995. He testified that during this time, he went "back and forth" to the United States using his visitor's visa. At some point, Bigler divorced, and his two children came to the United States.⁴ Bigler testified that in the year 2000, he entered the United States using his visitor's visa and met with an INS officer in Atlanta, Georgia. According to his testimony, Bigler left this meeting with the impression that he would receive a replacement LPR card due to the confusion with his date of birth. He further testified that he waited for the card for eight or nine months and, not having received the card, met with an INS officer in Tampa, Florida to inquire about the delay. Bigler received a replacement LPR card in the year 2000.

Bigler had also filed an application for naturalization with the INS office in Tampa, Florida on or about October 6, 1997. The preliminary naturalization interview took place on November 6, 2000. On April 16, 2001, the INS officer conducting the interview denied Bigler's application for naturalization based on his lack of continuous residence in the United States and his abandonment of LPR status in October 1990.

On February 19, 2002, Bigler made a sworn statement to the INS in Tampa, Florida in which he acknowledged that he lived in Colombia from January 1988 to December 1995, and that he applied for a visitor's visa in the year 1995. Bigler did not contest a statement by the INS interviewing officer that he had abandoned his United States residency when he signed the form on October 31, 1990 in Bogota, Colombia.

On November 29, 2002, the INS served Bigler with a notice to appear, thereby commencing removal proceedings in the Orlando immigration court. See 8 C.F.R. § 3.14(a)(2002). The notice stated that Bigler was last admitted to the United States as an LPR on or about July 14, 2000, that Bigler intended to remain permanently or indefinitely in the United States at that time, and that Bigler was therefore subject to removal from the United States pursuant to INA § 237(a)(1)(A) because he was inadmissible by law at the time of entry.⁵

On May 21, 2003, Bigler appeared before an IJ and denied several factual allegations contained in his notice to appear. Bigler also did not concede removability as charged. The proceeding was adjourned, and a contested removability hearing was held on November 7, 2003.⁶ The government submitted the following evidence of Bigler's removability at the November 2003 hearing: (1) Bigler's immigration and alien registration form completed when he first entered the United States in 1968; (2) the INS decision dated April 16, 2001 determining that Bigler was ineligible for naturalization; (3) the INS record of Bigler's sworn statement dated February 19, 2002; (4) Bigler's Colombian and Swiss passports; (5) the INS form entitled "Abandonment of Legal Status as Permanent Resident," signed by Bigler, and dated October 16, 1990; and (6) Bigler's LPR card, which states that it has been valid since 1968 and will expire in 2009.

The IJ of the contested removability hearing found that the government clearly established Bigler's removability. The IJ made a credibility determination that Bigler's claimed lack of knowledge as to the import of signing the abandonment form was not believable, particularly in light of the corroborating information contained in his sworn statement. The IJ further noted Bigler's marriage to a Colombian native in 1987, and the birth of his two children. Based on the foregoing evidence, the IJ sustained the charge of removability against Bigler pursuant to INA § 237(a)(1)(A).

Bigler appealed the IJ's decision to the BIA and on January 31, 2005, the BIA affirmed without opinion. Bigler now appeals the BIA's affirmance of the IJ's removability determination.

II. Discussion

We review the IJ's underlying decision rather than the BIA's determination because the BIA affirmed without an opinion. See Sepulveda v. U.S. Atty., Gen., 401 F.3d 1226, 1230 (11th Cir.2005)("When the BIA summarily affirms the IJ's decision without an opinion, the IJ's decision becomes the final removal order subject to review"). In the proceedings before the IJ, the INS had the burden of establishing Bigler's removability by clear and convincing evidence. INA § 240(c)(2)(A), 8 U.S.C. § 1229a(c)(3)(A). This Court reviews the IJ's factual findings and credibility determinations as to whether the INS presented clear and convincing evidence of removal under the substantial evidence test. See Farquharson v. U.S. Atty. Gen., 246 F.3d 1317, 1320 (11th Cir.2001). The substantial evidence test requires reversal of factual findings only if the evidence presented compels a contrary conclusion. Id. We "must affirm the IJ's decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole." Sepulveda, 401 F.3d at 1230 (citations omitted). We review the IJ's statutory interpretation de novo, but defer to the IJ's interpretation if reasonable. Farquharson, 246 F.3d at 1320.

We conclude that substantial evidence supports the IJ's determination that petitioner intended to abandon his LPR status. This circuit has not set forth a specific standard for determining whether or not a resident intended to abandon his or her LPR status, however, other circuits have articulated factors which may be considered in making this determination. The first and fifth circuits have noted that, "[t]o qualify as a returning resident alien, an alien must have acquired lawful permanent resident status in accordance with our laws, must have retained that...