Karimijanaki v. Holder

Decision Date28 August 2009
Docket NumberNo. 08-4622.,08-4622.
Citation579 F.3d 710
PartiesRezvan Gholamhossein KARIMIJANAKI and Hesameddin Nossoni, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

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.

Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

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 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 natural-ization 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 by Ali's brother in 1986.1 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.

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 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.

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, 86 S.Ct. 1018, 16 L.Ed.2d 131 (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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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."

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...

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