Lateef v. Holder, No. 10-3354

Decision Date26 June 2012
Docket NumberNo. 10-3354
PartiesHUMAIRA KHALID LATEEF; MUHAMMAD NADEEM ASLAM; MAHEEN NADEEM; DANIYAL MUHAMMAD NADEEM, Petitioners, v. ERIC H. HOLDER, JR., Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0195p.06

On Petition for Review of

Decision of the Board of Immigration Appeals.

Nos. A047 703 238; A047 703 237; A047 703 236; A042 984 748.

Before: SILER, McKEAGUE, and STRANCH, Circuit Judges.

COUNSEL

ARGUED: Russell Reid Abrutyn, MARSHAL E. HYMAN & ASSOC., PC, Troy, Michigan, for Petitioners. Julie M. Iversen, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Russell Reid Abrutyn, Marshal E. Hyman, MARSHAL E. HYMAN & ASSOC., PC, Troy, Michigan, for Petitioners. Julie M. Iversen, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

SILER, J., delivered the opinion of the court, in which McKEAGUE, J., joined. STRANCH, J. (pp. 13-23), delivered a separate dissenting opinion.

OPINION

SILER, Circuit Judge. Petitioners Humaira Lateef, her husband and minor children petition for review of an order by the Board of Immigration Appeals (BIA) that held that Lateef had abandoned her lawful permanent resident (LPR) status, which was imputed to her daughter and served as the foundation to deny her husband and other child entry into the United States. Lateef argues that while she spent the majority of her time in her native country after she became a LPR, she never abandoned her status. For the following reasons, we deny this petition for review.

I.
A.

Lateef is a native of Pakistan and became a LPR in June 1991 when she moved to the United States with her parents and brothers. Two months later she returned to Pakistan to complete her final two years of medical school because U.S. medical schools would require her to completely restart her education. After finishing medical school in Pakistan, she returned to the U.S. in May 1993 with a valid reentry permit.1 Then she remained in the U.S. for over two years.

Subsequently, Lateef began to spend the vast majority of her time in Pakistan. She returned to Pakistan in June 1995 to marry her husband. She returned to the U.S. nine months later, in March 1996, and took part one of the exam to practice medicine in the U.S. Her husband also applied for an entry visa. Lateef and her husband believed it would be granted in a relatively short period of time. Lateef returned to Pakistan five months later in August 1996. She became pregnant with her daughter shortly after her arrival and took part two of the U.S. medical exam.

Lateef remained in Pakistan for just over a year and returned to the U.S. with her daughter in August 1997. Lateef did not return to the U.S. earlier because her doctor advised her not to fly during her pregnancy. Her daughter was granted LPR status as "a child born during [a] temporary visit abroad" to an LPR. 8 C.F.R. § 211.1(b)(1). During her over six-month stay in the U.S., Lateef retook part two of the medical exam because she failed her previous attempt. She also filed an application for naturalization but subsequently withdrew it because she had not been in the U.S. the requisite number of days. Lateef then returned to Pakistan in March 1998 to see her husband. She stayed in Pakistan for over three months before returning to the U.S. for thirteen days to apply for medical residency positions in June 1998.

After staying in the U.S. thirteen days, in July 1998 Lateef returned to Pakistan for six months. Lateef stated she had to return to Pakistan because her daughter missed her and, even though her daughter was not ill, she was developing behavioral problems. Lateef stayed in Pakistan to help plan her brother's wedding and later returned to the U.S. in January 1999 for twenty days to take her naturalization exam. In February 1999, she returned to Pakistan for nearly nine months. In October 1999, Lateef returned to the U.S. for two weeks in anticipation of receiving offers to interview for residency positions, but she returned to Pakistan in November 1999 due to her daughter's continuing behavioral problems.

Lateef remained in Pakistan for a year and three months without any definite plans of returning to the U.S. She only knew that she wanted to return "as soon as possible." But when Lateef's husband and children2 were granted immigrant visas in November 2000, they stayed in Pakistan until February 2001 to attend weddings.

Lateef and her family attempted to enter the U.S. in February 2001. Even though she had not been in the U.S. since November 1999, Lateef told an officer with the formerImmigration and Naturalization Service (INS)3 that she was last in the U.S. in July 2000, but the passport did not corroborate Lateef's statement. Lateef stated that the previous INS officer she saw in July 2000 must have forgotten to stamp her passport. Nevertheless, Lateef and her family were referred for secondary immigration inspection.

During the secondary screening Lateef admitted the truth. After changing her story that she had last been in the U.S. in April 2000, the INS officials confronted Lateef with documents found in the family's luggage. When confronted with this evidence, Lateef admitted that she had not been in the U.S. since November 1999 and that she lied to the INS officials because she knew she had been traveling abroad for more than a year.

Lateef's only ties to the U.S. are her LPR parents and brothers. Prior to her arrival in Feburary 2001, she had never been employed or owned property in the U.S.

Lateef made seven trips to Pakistan during the approximately 116 months after she immigrated to the U.S. Over the course of that 116 months after she first arrived in the U.S. until her encounter with INS in February 2001, she spent thirty-five percent of her time in the U.S. (40 months) and sixty-five percent of her time in Pakistan (76 months).

B.

Removal proceedings against Lateef and her family began in June 2001. All Petitioners were charged with attempting to enter the U.S. without valid documentation in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). Lateef was also charged with misrepresenting a material fact to enter the U.S., in violation of 8 U.S.C. § 1182(a)(6)(C)(i), and her husband was charged with attempting to enter the U.S. to work without certification from the Department of Labor, in violation of 8 U.S.C.§ 1182(a)(5)(A). The only issue that Lateef and her family contested was whether she had abandoned her LPR status.

In 2004, the Immigration Judge (IJ) ordered the Petitioners removed as charged. The IJ determined that Lateef had abandoned her LPR status; accordingly, the Petitioners were not entitled to immigrant visas. The BIA subsequently affirmed the IJ's decision without opinion.

On appeal to this court, we remanded to the BIA for it to consider Lateef's arguments regarding her daughter's immigration status and how this may impact its decision that Lateef had abandoned her LPR status. The BIA vacated its earlier decision and remanded the case to the IJ for further factual inquiry on these issues.

In 2008, the IJ sustained the removal of all Petitioners as charged. The IJ held that once Lateef had abandoned her LPR status it was imputed to her daughter. Also, the IJ denied Lateef's new application for a waiver of inadmissibility due to her material misrepresentation, under 8 U.S.C. § 1182(I).

Petitioners appealed the IJ's decision to the BIA and raised new issues for appeal. In addition to their arguments that Lateef had not abandoned her LPR status and that her daughter maintained her LPR status, Petitioners raised the arguments that Lateef's husband was not inadmissible to the U.S. under 8 U.S.C. § 1182(a)(5)(A), that Lateef's husband and children were granted visas as LPRs pursuant to 8 C.F.R. § 1205.1(a)(3) before she was deemed to have abandoned her LPR status and therefore remain admissible to the U.S., and that Lateef is not inadmissible to the U.S. under 8 U.S.C. § 1182(a)(6)(C)(i). They also presented their waiver argument.

The BIA affirmed the IJ's ruling. The BIA also ruled that the Petitioners new arguments were not properly before it because they were not part of its limited remand order to the IJ and were not raised in their initial appeal. Even so, the BIA affirmed the IJ's initial ruling that Lateef's husband was inadmissible to the U.S. under 8 U.S.C. § 1182(a)(5)(A) and that Lateef was inadmissible to the U.S. under 8 U.S.C. § 1182(a)(6)(C)(i). The BIA also ruled that Lateef's husband's and children's visaswould be considered revoked "as of the date of [their] approval," pursuant to 8 C.F.R. § 1205.1(a), when it affirmed that Lateef had abandoned her LPR status. Accordingly, as a matter of law, Lateef's husband and children never had valid entry visas. The BIA did not specifically address Lateef's waiver argument. But since the IJ ruled that Lateef's material misstatement would be irrelevant if she had not abandoned her LPR status, the BIA indirectly affirmed the IJ's decision on Lateef's waiver argument when it ruled that the IJ correctly analyzed the abandonment issue.

II.

Where, as here, the BIA affirms an IJ's ruling and adds its own comments, "we review both the IJ's decision and the [BIA's] additional remarks." Karimijanaki v. Holder, 579 F.3d 710, 714 (6th Cir. 2009) (citation omitted). "Questions of law involving immigration proceedings are reviewed de novo." Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006). But we give deference to the BIA when it reasonably interprets immigration statutes and regulations. Karimijanaki, 579 F.3d at 714 (citations omitted).

The BIA's order will be upheld if it is supported by substantial evidence. Id. We cannot reverse the BIA's ruling just because we would have reached a different decision. Id. See Hana v. Gonzales, 400 F.3d 472, 475 (6th Cir. 2005) ("we may not reverse the [BIA] simply because w...

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