Irene Atseyinku v. Jefferson Sessions III

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 26, 2018
• Docket: 17-1557
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-1557

IRENE O. ATSEYINKU,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted: March 21, 2018 Decided: April 26, 2018

Before WILKINSON, TRAXLER, Circuit Judges, and Leonie M. BRINKEMA, United States District Judge for the Eastern District of Virginia, sitting by designation.

Petition denied by unpublished per curiam opinion.

Marco Pignone, III, GETSON & SCHATZ, P.C., Philadelphia, Pennsylvania, for Petitioner. Chad A. Readler, Acting Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Joseph A. O’Connell, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

An Immigration Judge (IJ) ordered Irene O. Atseyinku removed to Nigeria on the

ground that she had failed to maintain her status as a lawful permanent resident of the

United States. After twice remanding the case back to the IJ, the Board of Immigration

Appeals (BIA) eventually upheld the IJ’s removal order. Atseyinku then filed motions to

reconsider and to reopen the removal order, which the BIA denied. Atseyinku now argues

on appeal that the BIA abused its discretion in denying those motions. For the reasons

that follow, we deny the petition for review.

I

Atseyinku is a citizen of Nigeria who was admitted to the United States as a lawful

permanent resident in October 2006. She returned to Nigeria sixteen days later and, after

spending the majority of the next three years in her native country, tried to enter the

United States as a lawful permanent resident on September 3, 2009. A passport security

check indicated that she had spent a total of approximately two months in the United

States since becoming a permanent resident in 2006. After being interviewed by a

Customs and Border Patrol (CBP) officer, Atseyinku was issued a notice to appear in a

removal proceeding. The notice charged that Atseyinku had abandoned her status as a

lawful permanent resident and was thus removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I),

which states in relevant part that “any immigrant at the time of application for admission

who is not in possession of” valid entry documents “is inadmissible.”

On June 1, 2010, Atseyinku appeared before an IJ. The Department of Homeland

Security (DHS) submitted evidence in support of removability, including documentary

2 evidence about Atseyinku’s arrival and departure record. The information DHS provided

showed that Atseyinku left the United States sixteen days after her initial entry in 2006;

the information also showed that she returned to the United States on September 5, 2007

and stayed for another twenty-one days. In total, Atseyinku was physically present in the

United States for sixteen days in 2006, twenty-five days in 2007, and twenty days in

2008.

On January 26, 2011, the IJ held a hearing on Atseyinku’s removability.

Atseyinku testified that she had returned to Nigeria for such long periods because her

mother had been ill since 2005, and because she was trying to arrange for her daughter to

live with her in the United States over the objections of the child’s father. Atseyinku said

that she eventually reached an agreement with the child’s father, and that she had been

living in Laurel, Maryland, since approximately January 2010. She said that she had been

working as a retail associate at Macy’s since November 2009, and as a teller at a local

bank since July 2010. She also said that her daughter attended high school in the United

States. In addition, she pointed out that she had filed federal and state tax returns since

becoming a lawful permanent resident, obtained an American phone and credit cards, and

given a friend money to buy her a car to use when she was in the country. Although she

testified that that she had previously applied for jobs in the United States, she admitted

that, prior to the initiation of removal proceedings, she had not worked in this country.

She further admitted that, when she was detained by CBP in 2009, she said that she was

in the United States on “holiday” and intended to return to Nigeria after eleven days.

3 On February 10, 2011, the IJ issued an oral decision. Because the child custody

dispute did not “account[] for her remarkably short periods of time in the United States

and dramatically long periods of time in Nigeria,” the IJ concluded that Atseyinku had

abandoned her permanent resident status and ordered her removed to Nigeria. Id.

Atseyinku sought review from the BIA, and the BIA remanded the case and

directed the IJ to address five of Atseyinku’s claims: (1) that her travels to Nigeria were

primarily motivated by a desire to visit her ailing mother and to resolve a custody

dispute; (2) that she purchased a car in the United States through a friend; (3) that she

sought employment in the United States; (4) that she paid taxes in the United States and

maintained an American bank account, credit card, and cell phone; and (5) that she was

stressed and confused when she told border agents that she planned to return to Nigeria

eleven days after her 2009 visit to the United States.

On February 14, 2013, the IJ issued a second decision. The IJ concluded again that

Atseyinku had failed to maintain her permanent resident status because: (1) she had only

been present in the United States for a total of 70 out of 1,066 days between initial entry

and receiving a notice to appear in removal proceedings; (2) she had told the CBP Officer

that she planned to return to Nigeria in eleven days to “take [her] daughter back to school

in Nigeria,” A.R. 569; (3) the title for Atseyinku’s car showed that she purchased it on

September 1, 2010, nearly a year after the initiation of removal proceedings; and (4)

Atseyinku did not report any taxable income and her bank records were sparse, which did

not suggest that she intended to retain her permanent resident status.

4 Atseyinku appealed, and on January 21, 2015, the BIA again remanded the case

for further proceedings. Specifically, the BIA directed the IJ to consider additional

evidence that Atseyinku was engaged in an active job search in the United States before

the removal proceeding.

On April 21, 2015, the IJ issued a third and final decision. The IJ took note of an

October 2006 email from a U.S. employer stating that it had received Atseyinku’s

résumé, but the IJ concluded that Atseyinku still failed to prove that she intended to

remain a permanent resident in the United States. The IJ was also unconvinced by

affidavits provided in support of Atseyinku’s contention that the custody dispute was not

resolved until September 2009. The IJ again ordered Atseyinku removed to Nigeria.

Atseyinku appealed a third time, and on October 25, 2016, the BIA upheld the IJ’s

determination that Atseyinku had abandoned her permanent resident status. The BIA

largely agreed with the IJ’s analysis and concluded, contrary to Atseyinku’s arguments

on appeal, that the IJ did not erroneously shift the burden of proof to Atseyinku; that the

IJ properly accorded less evidentiary weight to affidavits from Atseyinku’s mother and a

close friend; and that an express adverse credibility determination was not warranted in

order to conclude that Atseyinku had abandoned her permanent resident status. The BIA

observed that “the Immigration Judge failed to consider an email exchange between

[Atseyinku and a prospective employer] dated October 18, 2006,” but concluded that the

error was harmless in light of the totality of the evidence. A.R. 63.

On November 25, 2016, Atseyinku filed a motion to reconsider with the BIA. She

argued that the IJ had failed to follow the BIA’s January 21, 2015 remand instructions,

5 and that the IJ erred in concluding that DHS satisfied its burden of proving that she had

abandoned her permanent resident status. On January 19, 2017, Atseyinku also filed a

motion to reopen her removal proceedings with the BIA. She requested that her daughter,

now an adult, be permitted to offer testimony regarding the custody dispute.

On March 31, 2017, the BIA denied both motions. As to Ateyinku’s motion for

reconsideration, the Board concluded that Atseyinku did not establish any error of fact or

law in its previous decision, that the IJ’s decision did not include a prejudicial error, and

that both the IJ and the BIA applied the proper burden of proof.

The BIA also concluded that reopening was not warranted. The BIA was not

persuaded that Atseyinku’s daughter’s age had prevented her from testifying in the

Immigration Court and, in any event, this evidence would not “change the outcome of the

proceedings.” A.R. 3-4. This petition for review followed.

II

A.

We first consider whether the BIA erred by denying Atseyinku’s motion to

reconsider the BIA’s removal order. We review BIA decisions denying motions to

reconsider for abuse of discretion. See I.N.S. v. Abudu, 485 U.S. 94, 909 (1988). This

Court may overturn a denial of a motion for reconsideration “only if the Board acted

arbitrarily, irrationally, or contrary to law.” Mohammed v. Gonzales, 400 F.3d 785, 791

(9th Cir. 2005).

A returning permanent resident alien is “an immigrant, lawfully admitted for

permanent residence, who is returning [to the United States] from a temporary visit

6 abroad.” 8 U.S.C. § 1101(a)(27)(A). If immigration authorities determine that the absence

is not a temporary visit abroad, the alien will be deemed to have abandoned permanent

resident status and will be denied admission to the United States. DHS has the burden to

show by clear, unequivocal, and convincing evidence that the alien abandoned her lawful

permanent resident status. See Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988).

In determining whether an alien abandoned her status as a permanent resident, the

primary inquiry is whether the alien’s trip abroad was “temporary.” 8 U.S.C. §

1101(a)(27)(A). Courts and the BIA have held that a “temporary” visit is either: (1) for a

“period relatively short, fixed by some early event,” or (2) set to “terminate upon the

occurrence of an event having a reasonable possibility of occurring within a relatively

short period of time.” Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th Cir. 1986). In the

latter case, where a visit abroad “is contingent upon the occurrence of an event and is not

fixed in time,” courts will find that the visit is temporary “only if the alien has a

continuous, uninterrupted intention to return to the United States during the entirety of

[her] visit.” Chavez, 792 F.2d at 937.

The BIA correctly concluded, based on the totality of circumstances, that

Atseyinku abandoned her permanent resident status. She spent only 70 of 1,066 days in

the United States during the relevant period. Two of her trips to Nigeria lasted nearly a

year, and, when traveling to the United States, she always purchased round-trip tickets

with a return trip to Nigeria. In addition, she submitted a sworn statement to a CBP

Officer that she was traveling to the United States on holiday and planned to return to

Nigeria eleven days later. There was, moreover, little evidence that Atseyinku sought

7 employment in the United States before her removal proceedings began.

The BIA properly upheld the IJ’s removal order. Atseyinku now argues that the

IJ’s failure to make an explicit adverse credibility determination precluded him from

concluding that she had abandoned her permanent resident status. But courts need not

make an express adverse credibility determination to order removal, and Atseyinku’s

mere statement that she maintained an intent to return to the United States does not, by

itself, render her absence a “temporary visit abroad.” Singh v. Reno, 113 F.3d 1512, 1515

(9th Cir. 1997). Actions can be determinative, and Atseyinku’s behavior evinced an

intent to reside permanently in Nigeria—not in the United States.

Atseyinku also now argues that the Board abused its discretion in concluding that

the record and testimony offered left no doubt as to her intentions to live in the United

States. Atseyinku suggests that the “clear, unequivocal, and convincing evidence”

standard requires the moving party to prove its case beyond “any doubt,” Pet. Br. 21-22,

essentially equating that standard to the criminal beyond-a-reasonable-doubt standard.

The Supreme Court has explained, however, that “clear and convincing”

standards occupy an intermediate position between preponderance of the evidence and

proof beyond a reasonable doubt. See California ex rel. Cooper v. Mithcell Bros.’ Santa

Ana Theater, 454 U.S. 90, 93 (1981). The phrase “clear, unequivocal, and convincing”

“is simply one of the many articulations of the intermediate burden of proof, not a

counterintuitive way to say ‘beyond a reasonable doubt.’” Mondaca-Vega v. Lynch 808

F.3d 413, 420 (9th Cir. 2015). The IJ in this case applied precisely this intermediate

standard, and the BIA thus correctly found that it “applied the correct burden of proof in

8 evaluating whether [Atseyinku] abandoned her lawful permanent residency.” A.R. 50.

Finally, Atseyinku argues that the removal order should be reconsidered on

account of the IJ’s failure to consider a single email. Although the BIA found that the IJ

erred in not considering an October 18, 2006 email exchange with a prospective

employer, the Board found that the error was harmless. We agree. The record contains

two email exchanges with a prospective employer, Ameriprise Financial Advisors. The

first was dated October 14 and informed Atseyinku that the company had received her

résumé. In the second email exchange, dated October 18, Atseyinku inquired about

available positions and salaries, and the company provided that information.

The IJ concluded that the first email did not provide evidence that Atseyinku

intended to remain a permanent resident because she made no other attempts to find

employment in the United States before the initiation of removal proceedings in

September 2009. The second email exchange was a brief follow-up to the first inquiry.

A reviewing court is “entitled to permit a decision to stand if the legal and factual

infirmities ‘clearly had no bearing on the . . . substance of the decision reached.’” Tassi v.

Holder, 660 F.3d 710, 725 (4th Cir. 2011). The Court will generally remand where “it is

likely that the IJ would have reached a different outcome if he had given due

consideration to the independent evidence that he” did not consider. Anim v. Mukasey,

535 F.3d 243, 261 (4th Cir. 2008). The Board properly concluded that the IJ’s failure to

discuss the follow-up email, which simply asked for information about the position’s

salary, did not affect the outcome of the case. It is hard to see how this email provides

any additional support for Atseyinku’s claim that she did not abandon her status as a

9 lawful permanent resident. The IJ’s error was therefore harmless.

B.

We next consider whether the BIA erred by denying Atseyinku’s motion to

reopen. As with motions for reconsideration, we review motions to reopen under the

deferential abuse of discretion standard. See I.N.S. v. Abudu, 485 U.S. 94, 909 (1988).

And here, the BIA did not abuse its discretion in determining that reopening was not

warranted.

For a case to be reopened, the evidence supporting the motion to reopen must be

previously unavailable such that it “could not have been discovered or presented at the

previous hearing.” 8 U.S.C. § 1229a(c)(7)(C)(ii). The BIA properly denied Atseyinku’s

motion to reopen because Atseyinku’s newly submitted evidence was in fact previously

available, and because she did not otherwise demonstrate that the new evidence would

have changed the result in her case. The new evidence Atseyinku sought to admit was an

affidavit filed by her nineteen year-old-daughter. The additional affidavit stated only that

the custody dispute began in August 2008, and that it was not resolved until after her

parents’ families intervened. The BIA was “not persuaded that the respondent’s

daughter’s age at the time of the hearing rendered her incapable of submitting a similar

affidavit or testifying to the contents of the affidavit.” A.R. 3. Atseyinku’s conclusory

statements that her daughter was too young to testify give us no reason to question this

determination, much less to find that it was an abuse of discretion.

Even assuming Atseyinku’s daughter was too young to testify in 2011, the BIA

also correctly concluded that reopening was not warranted because her allegations would

10 likely not affect the outcome of the case. In a reopening, “[t]he petitioner carries a ‘heavy

burden’ [in that] . . . she must show that ‘the new evidence offered would likely change

the result in the case.’” Wanrong Lin v. Holder, 771 F.3d 177, 183 (4th Cir. 2014). The

claims in Atseyinku’s daughter’s affidavit were duplicative of affidavits filed by

Atseyinku’s mother and friend. Given these circumstances, the additional affidavit would

not have changed the outcome of the case.

Atseyinku was admitted to the United States as a lawful permanent resident in

2006. Lawful permanent residents are able to live and work in the United States. Those

privileges, however, come with certain obligations, one of which is to maintain an

intention to actually live in the United States. Atseyinku spent a total of approximately

two months in the United States in the three years following her initial entry. It is clear

that she did not intend to maintain a permanent residency. The petition for review is

accordingly

DENIED.