Moin v. Ashcroft

• Decision Date: 20 June 2003
• Docket Number: No. 02-60449.,02-60449.
• Citation: 335 F.3d 415
• Parties: Zeba MOIN; Moiz Ullah, et al, Petitioners, v. John ASHCROFT, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

335 F.3d 415

Zeba MOIN; Moiz Ullah, et al, Petitioners, v. John ASHCROFT, U.S. Attorney General, Respondent.

No. 02-60449.

United States Court of Appeals, Fifth Circuit.

June 20, 2003.

COPYRIGHT MATERIAL OMITTED

Brian K. Bates (argued), Quan, Burdette & Perez, Houston, TX, for Petitioners.

Barry Joseph Pettinato (argued), U.S. Dept. of Justice, Dept. of Homeland Sec., John Ashcroft, U.S. Dept. of Justice, Civil Div.—Appellate Staff, David V. Bernal, Thomas Ward Hussey, Director, U.S. Dept. of Justice, Civil Div. Immigration Litigation, Washington, DC, Hipolito Acosta, U.S. I.N.S., Houston, TX, Caryl G. Thompson, U.S. I.N.S., Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

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

Before JONES and BENAVIDES, Circuit Judges, and KAZEN, Chief District Judge.¹

KAZEN, Chief Judge:

Zeba Moin and her minor son, Moiz Ullah, appeal the ruling of the Board of Immigration Appeals (BIA), which affirmed an immigration judge's holding that Zeba Moin abandoned her lawful permanent resident status and is, therefore, an inadmissible alien subject to exclusion and deportation.² We AFFIRM.

I.

In August 1991, Zeba Moin, a native and citizen of Pakistan, was lawfully admitted for permanent residence in the United States as the unmarried daughter of a permanent resident father.³ Two months later, in October 1991, she left this country to return to Pakistan. Over the next fifty-four months, Moin made several trips between the two countries. During that period, her total stay in this country was approximately six months. On February 2, 1996, Moin returned to the United States from her latest trip, accompanied by her son, Moiz Ullah. She had left Pakistan on a round-trip airline ticket with a return date of May 29, 1996. Upon her arrival in the United States, she presented her permanent resident card and Pakistani passport to the primary immigration officer at Houston Intercontinental Airport. She was then referred to secondary inspection to process her son for admission. The secondary officer deferred her inspection to the INS Houston District Office because of the length of time she had spent outside the United States. An INS inspector ultimately concluded that Moin had abandoned her status as a lawful permanent resident and was therefore inadmissible to the United States. After hearing several days of testimony from the INS inspector, Moin, and Moin's family, an immigration judge agreed that Moin had abandoned her lawful permanent resident status in October 1991 and ordered Moin and her son excluded and deported from the United States. This order was affirmed by a single member of the BIA, without opinion, in May of 2002. This timely petition for review followed.

II.

Although this Court generally reviews decisions of the BIA, not immigration judges, it may review an immigration judge's decision when, as here, the BIA affirms without additional explanation. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997). In either case, this Court must affirm the decision if there is no error of law and if reasonable, substantial, and probative evidence on the record, considered as a whole, supports the decision's factual findings. See Howard v. INS, 930 F.2d 432, 434 (5th Cir.1991). Conclusions regarding an alien's intent are essentially factual and are reviewed for substantial evidence. See Chavez-Ramirez v. INS, 792 F.2d 932, 934-35 (9th Cir.1986). This Court will not reverse a BIA decision unless the petitioner provides evidence "so compelling that no reasonable fact-finder could conclude against it." Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.1996); see also INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 817, 117 L.Ed.2d 38 (1992).

Moin argues that this standard of review is too deferential to the BIA in this case, because the BIA issued no opinion and review was conducted by only one member of the Board.⁴ Instead, Moin asks this Court to formulate some "new, less deferential standard of review" in such cases, but she offers no authority for that request nor does she articulate a proposed standard. The Administrative Procedure Act, as a general proposition, mandates substantial evidence review of administrative agency fact findings, and at least one circuit has applied the substantial evidence standard where the BIA's streamlined procedures were used. See 5 U.S.C. § 706; Albathani v. INS, 318 F.3d 365 (1st Cir.2003).⁵ Further, given that the substantial evidence test requires review of the entire administrative record, irrespective of whether or not BIA issued an opinion, we see no reason to apply any other standard in this case.

III.

The issue of whether or not an alien has abandoned her lawful permanent resident status is one of first impression in this circuit, but decisions of the BIA and sister circuits give guidance. "[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 status from the time that [she] acquired it, and must be returning to an unrelinquished lawful permanent residence after a temporary visit abroad." Matter of Huang, 19 I. & N. Dec. 749, 753 (BIA 1988) (internal quotation marks and citations omitted). The instant case turns on whether Moin's extended trips to Pakistan constituted "temporary visits abroad."

"Temporary" in this context is not merely an antonym of "permanent." A trip is a "temporary visit abroad" if (a) it is for a "relatively short" period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.

Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir.1997); see also Ahmed v. Ashcroft, 286 F.3d 611, 613 (2d Cir.2002) (per curiam).

Moin argues that her trips to Pakistan were "temporary visits abroad" for two reasons. First, she notes that no trip exceeded two years, and she obtained a reentry permit valid for two years. However, "temporary visits" are not defined in terms of elapsed time alone. See Ahmed, 286 F.3d at 613; Huang, 19 I. & N. Dec. at 753. Also, a reentry permit, in and of itself, does not prevent a finding that an alien has abandoned her permanent residency status. "A reentry permit does not guarantee [an alien's] return if he or she is found inadmissible on seeking reentry." 3 Gordon and Mailman, Immigration Law and Procedure, § 35.02[1]. A reentry permit merely serves as evidence of an alien's intent to return, which the Government may refute by clear, unequivocal, and convincing evidence. Id. at § 35.02[3]. Moin cites Saxbe v. Bustos, 419 U.S. 65, 95 S.Ct. 272, 277-278, 42 L.Ed.2d 231 (1974), for the proposition that an alien granted permanent residency status has the privilege of living in this country but is not required to do so. Saxbe, however, involved alien commuters who lived abroad but would return to the United States to work, either on a daily or seasonal basis. Id. at 278. Unlike Moin, they were returning regularly to the United States after short visits abroad, with their return triggered by some identifiable event, i.e. the need to return to work at some determinable time. Alien commuters have established business affiliations in the United States that demonstrate their "intent to return ... within a relatively short period." Singh, 113 F.3d at 1514. Moin has no such affiliations, and her various returns to the United States from Pakistan were not linked to any identifiable triggering event occurring within a reasonably short time frame.

Second, Moin argues that she always intended to reside permanently in the United States. "The relevant intent, [however], is not the intent to return ultimately, but the intent to return to the United States within a relatively short period." Singh, 113 F.3d at 1514. "Factors to be considered in evaluating the intent of the alien 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." Id. at 1514-1515. An applicant's desire to maintain her status as a permanent resident, without more, is insufficient; the alien's intent must be supported by her actions. Id. at 1514-15.

IV.

The immigration judge concluded from the Singh factors that Moin demonstrated a lack of intent to return to the United States within a relatively short time after her various absences. He based that conclusion on the following evidence.

In October 1991, two months after arriving in this country, Moin returned to Pakistan at her parents' urging, to consider several marriage proposals and obtain a husband. She expressed an intent to be away from the United States for only a few months, but instead stayed in Pakistan almost a year. While in Pakistan, Moin soon married Mohammad Rashid. The wedding ceremony and related cultural events extended for a period of three months. Moin's stay in Pakistan was further extended when she became pregnant with her first child, born September 6, 1992. She remained in Pakistan throughout the pregnancy because she was occasionally sick and because her husband was not able to come with her to the United States. Moin finally returned to this country in ...