United States Court of Appeals For the First Circuit
No. 19-1777
WISSAM MAHMOUD,
Petitioner,
v.
WILLIAM P. BARR, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Thompson, and Kayatta, Circuit Judges.
Randy Olen for petitioner. Victoria M. Braga, Trial Attorney, Office of Immigration Litigation, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, were on brief for respondent.
November 30, 2020 THOMPSON, Circuit Judge. Petitioner Wissam Mahmoud
seeks our intervention in a decision of the Board of Immigration
Appeals (BIA) dismissing his appeal of an Immigration Judge's (IJ)
decision finding that Mahmoud had abandoned his status as a Lawful
Permanent Resident (LPR) in the United States and ordering removal.
Bound by a deferential standard of review, we must deny Mahmoud's
petition.
BACKGROUND
Mahmoud's Story
Mahmoud is a Lebanese citizen, admitted to the United
States as an LPR in 1991. By 2002, Mahmoud's parents and siblings
had all lawfully immigrated to the United States, with the bulk of
them settling in Rhode Island. From 1991 to 2008, Mahmoud lived
with his family in what might be appropriately described as the
family compound. Consequently, Mahmoud never owned his own home
in Rhode Island. During this seventeen-year period, he did pay
taxes to the United States and had health insurance here.
In 2008, in the midst of a United States recession,
Mahmoud, having lost his job managing one brother's restaurant,
obtained a temporary work visa and moved to Edmonton, Alberta,
Canada, to work in a restaurant owned by another one of his
brothers. While there, he solely paid taxes to Canada and had
Canadian health insurance.
- 2 - Mahmoud renewed his Canadian temporary work visa
annually because he says he was unable to find work in the United
States and, in 2012, he purchased a home in Canada. In April of
2013, Mahmoud was visiting the United States when a United States
Customs and Border Patrol Officer advised him that he should apply
for a reentry permit for travel to the United States.
Along the way, Mahmoud met a Canadian citizen of Lebanese
descent who would become his wife. The couple travelled to Lebanon
in 2013 where they married in August. While Mahmoud was there, a
United States Customs and Border Patrol Officer again advised
Mahmoud that he should obtain a reentry permit.
After the wedding, the couple flew back to Canada with
the professed intention of settling their affairs and returning to
the United States. Towards that end (and as before), Mahmoud's
wife never petitioned Canada on Mahmoud's behalf for any sort of
permanent immigration status. But before Mahmoud could order his
affairs, he fell ill with listeria and viral meningitis and
required months of hospitalization and rehabilitation in Canada
from October of 2013 through most of 2014. The rehabilitation
program prohibited Mahmoud from traveling, but once he was well
enough to adequately move about, he says he intended to return to
the United States. In July of 2014, Mahmoud's wife gave birth to
their son, whose birth was registered in Canada and not in the
United States.
- 3 - By November of 2014, Mahmoud was physically able to
travel and applied for preclearance to enter the United States.
He was paroled into the United States in December of 2014 for a
deferred inspection because the duration of Mahmoud's absence from
the United States at that point raised red flags about his
admissibility. In total, from 2008 to 2014, Mahmoud returned to
the United States seven to ten times to visit family and look for
a job. The visits, ranging in length from three days to several
weeks, cumulated in Mahmoud being physically present in the United
States for 110 days over that six-year period.
At the hearing before the IJ, the government contended
that Mahmoud was not admissible into the United States because he
had abandoned his LPR status. In support of its position, the
government highlighted Mahmoud's connections to Canada and the
short time he spent in the United States. For his part, Mahmoud
testified to the facts as summarized above and repeatedly stated
that he always intended to return to the United States. In its
ruling, the IJ concluded that Mahmoud's actions did not demonstrate
an uninterrupted intent to return to and permanently reside in the
United States. Specifically, the IJ held that Mahmoud's extended
trips out of the country, various connections to Canada, and delay
in pursuing a reentry permit (even after being warned in April and
August of 2013 to do so) all evinced that Mahmoud lacked the intent
to return to the United States as soon as practicable. As to
- 4 - Mahmoud's main contention that he was looking for work in the
United States during his travels, the IJ found that Mahmoud's trips
were often too short to facilitate a search for work.
On appeal to the BIA, the Board agreed with the IJ that
Mahmoud did not demonstrate a continuous, uninterrupted intent to
return to the country and dismissed the appeal. The BIA noted
that Mahmoud's record demonstrated a close connection to Canada
(which he had maintained for five years when he became too ill to
travel) and that his trips to the United States were too short to
allow for a reasonable search for employment.
Mahmoud now petitions us for relief. He argues that he
always wanted to move back to the United States once he had a job
and the burden is on the government to disprove that. Carefully
considering his argument, the record, and the decision of the BIA,
we deny Mahmoud's petition.
OUR TAKE
Standard of Review
When an applicant for admission has a colorable claim to
returning to lawful permanent resident status, the government
bears the burden of proving by "clear, unequivocal, and convincing
evidence" that he abandoned his status while out of the country
and is therefore ineligible for admission into the United States.
Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir. 2005) (quoting
Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997)). Where "the
- 5 - BIA adopted and affirmed the IJ's decision yet supplied its own
gloss, we review the tiered decisions as a unit." Arias-Minaya v.
Holder, 779 F.3d 49, 52 (1st Cir. 2015). We review the fact-
intensive question of whether the government proved by clear,
unequivocal, and convincing evidence that an LPR abandoned his
status under the "substantial evidence test." Katebi, 396 F.3d at
466. "Substantial evidence exists if the [BIA's] decision is
'supported by reasonable, substantial, and probative evidence on
the record considered as a whole.'" Id. (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)).
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United States Court of Appeals For the First Circuit
No. 19-1777
WISSAM MAHMOUD,
Petitioner,
v.
WILLIAM P. BARR, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Thompson, and Kayatta, Circuit Judges.
Randy Olen for petitioner. Victoria M. Braga, Trial Attorney, Office of Immigration Litigation, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, were on brief for respondent.
November 30, 2020 THOMPSON, Circuit Judge. Petitioner Wissam Mahmoud
seeks our intervention in a decision of the Board of Immigration
Appeals (BIA) dismissing his appeal of an Immigration Judge's (IJ)
decision finding that Mahmoud had abandoned his status as a Lawful
Permanent Resident (LPR) in the United States and ordering removal.
Bound by a deferential standard of review, we must deny Mahmoud's
petition.
BACKGROUND
Mahmoud's Story
Mahmoud is a Lebanese citizen, admitted to the United
States as an LPR in 1991. By 2002, Mahmoud's parents and siblings
had all lawfully immigrated to the United States, with the bulk of
them settling in Rhode Island. From 1991 to 2008, Mahmoud lived
with his family in what might be appropriately described as the
family compound. Consequently, Mahmoud never owned his own home
in Rhode Island. During this seventeen-year period, he did pay
taxes to the United States and had health insurance here.
In 2008, in the midst of a United States recession,
Mahmoud, having lost his job managing one brother's restaurant,
obtained a temporary work visa and moved to Edmonton, Alberta,
Canada, to work in a restaurant owned by another one of his
brothers. While there, he solely paid taxes to Canada and had
Canadian health insurance.
- 2 - Mahmoud renewed his Canadian temporary work visa
annually because he says he was unable to find work in the United
States and, in 2012, he purchased a home in Canada. In April of
2013, Mahmoud was visiting the United States when a United States
Customs and Border Patrol Officer advised him that he should apply
for a reentry permit for travel to the United States.
Along the way, Mahmoud met a Canadian citizen of Lebanese
descent who would become his wife. The couple travelled to Lebanon
in 2013 where they married in August. While Mahmoud was there, a
United States Customs and Border Patrol Officer again advised
Mahmoud that he should obtain a reentry permit.
After the wedding, the couple flew back to Canada with
the professed intention of settling their affairs and returning to
the United States. Towards that end (and as before), Mahmoud's
wife never petitioned Canada on Mahmoud's behalf for any sort of
permanent immigration status. But before Mahmoud could order his
affairs, he fell ill with listeria and viral meningitis and
required months of hospitalization and rehabilitation in Canada
from October of 2013 through most of 2014. The rehabilitation
program prohibited Mahmoud from traveling, but once he was well
enough to adequately move about, he says he intended to return to
the United States. In July of 2014, Mahmoud's wife gave birth to
their son, whose birth was registered in Canada and not in the
United States.
- 3 - By November of 2014, Mahmoud was physically able to
travel and applied for preclearance to enter the United States.
He was paroled into the United States in December of 2014 for a
deferred inspection because the duration of Mahmoud's absence from
the United States at that point raised red flags about his
admissibility. In total, from 2008 to 2014, Mahmoud returned to
the United States seven to ten times to visit family and look for
a job. The visits, ranging in length from three days to several
weeks, cumulated in Mahmoud being physically present in the United
States for 110 days over that six-year period.
At the hearing before the IJ, the government contended
that Mahmoud was not admissible into the United States because he
had abandoned his LPR status. In support of its position, the
government highlighted Mahmoud's connections to Canada and the
short time he spent in the United States. For his part, Mahmoud
testified to the facts as summarized above and repeatedly stated
that he always intended to return to the United States. In its
ruling, the IJ concluded that Mahmoud's actions did not demonstrate
an uninterrupted intent to return to and permanently reside in the
United States. Specifically, the IJ held that Mahmoud's extended
trips out of the country, various connections to Canada, and delay
in pursuing a reentry permit (even after being warned in April and
August of 2013 to do so) all evinced that Mahmoud lacked the intent
to return to the United States as soon as practicable. As to
- 4 - Mahmoud's main contention that he was looking for work in the
United States during his travels, the IJ found that Mahmoud's trips
were often too short to facilitate a search for work.
On appeal to the BIA, the Board agreed with the IJ that
Mahmoud did not demonstrate a continuous, uninterrupted intent to
return to the country and dismissed the appeal. The BIA noted
that Mahmoud's record demonstrated a close connection to Canada
(which he had maintained for five years when he became too ill to
travel) and that his trips to the United States were too short to
allow for a reasonable search for employment.
Mahmoud now petitions us for relief. He argues that he
always wanted to move back to the United States once he had a job
and the burden is on the government to disprove that. Carefully
considering his argument, the record, and the decision of the BIA,
we deny Mahmoud's petition.
OUR TAKE
Standard of Review
When an applicant for admission has a colorable claim to
returning to lawful permanent resident status, the government
bears the burden of proving by "clear, unequivocal, and convincing
evidence" that he abandoned his status while out of the country
and is therefore ineligible for admission into the United States.
Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir. 2005) (quoting
Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997)). Where "the
- 5 - BIA adopted and affirmed the IJ's decision yet supplied its own
gloss, we review the tiered decisions as a unit." Arias-Minaya v.
Holder, 779 F.3d 49, 52 (1st Cir. 2015). We review the fact-
intensive question of whether the government proved by clear,
unequivocal, and convincing evidence that an LPR abandoned his
status under the "substantial evidence test." Katebi, 396 F.3d at
466. "Substantial evidence exists if the [BIA's] decision is
'supported by reasonable, substantial, and probative evidence on
the record considered as a whole.'" Id. (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). To grant Mahmoud's petition,
the evidence must not only support the contrary finding, but compel
it. See Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003).
Retention or Abandonment of LPR Status
In most circumstances, an LPR is permitted to reenter
the United States after traveling abroad, so long as he is
"returning to an unrelinquished lawful permanent residence after
a temporary visit abroad." Katebi, 396 F.3d at 466 (quoting Moin
v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003)). If, however, the
trip in question was not a "temporary visit abroad," then the LPR
will be deemed to have abandoned his permanent resident status.
Id. Although the notion of a "temporary visit abroad" is
"inherently nebulous," id. (quoting Aleem v. Perryman, 114 F.3d
672, 676 (7th Cir. 1997)), we have identified two main
- 6 - circumstances in which a trip abroad qualifies as a temporary
visit:
[A] permanent resident returns from a temporary visit abroad only when (a) the permanent resident's visit is for a period relatively short, fixed by some early event, or (b) the permanent resident's visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a short period of time. If as in (b), the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a temporary visit abroad only if the alien has a continuous, uninterrupted intention to return to the United States during the entirety of the visit.
Id. (quoting Chavez-Ramirez v. INS, 792 F.2d 932, 936-37 (9th Cir.
1986)). Mahmoud agrees that his time abroad was not "relatively
short" and that his case is therefore best analyzed under part
(b). The operative question then is whether the BIA erred when it
held he did not have "a continuous, uninterrupted intention to
return to the United States during the entirety of his visit" to
Canada. Id.
Merely professing one's intent to maintain LPR status is
not alone enough. Id. at 467. Indeed, intent can be a slippery
concept, so we evaluate Mahmoud's actions to see if they evince
his continued intent to return to the United States. Though time
abroad can be an informative factor, it is not alone determinative
in this holistic analysis. We look at the record to determine if
- 7 - Mahmoud's "activities are consistent with an intent to return to
the United States as soon as practicable." Id. at 466.
Specifically, we look at Mahmoud's "family ties, property
holdings, and business affiliations within the United States" and
in Canada, where he was living during his time abroad. Id. at
466-67 (citing Moin, 335 F.3d at 419).
Mahmoud undoubtedly had strong family connections in the
United States through the entirety of his time abroad. His parents
and several siblings lived in Rhode Island and he stayed with them
during his visits to the United States. Though Mahmoud also had
a brother in Canada with whom he lived for some time and he
eventually married a Canadian citizen, that alone does not minimize
his familial connections to the United States. However, Mahmoud's
other actions as reasonably interpreted by the government weaken
his contention that he maintained a continual intention to return
to the United States as soon as practicable. See Singh, 115 F.3d
at 1514. He purchased a home in Canada, paid taxes there,
maintained employment there, married a Canadian citizen. During
that same period (2008 - 2014), Mahmoud only spent 110 days total
in the United States, and did not pay taxes, have employment, or
own any property in this country. Considering that, we can see
why the BIA did not believe he had a continual intent to make a
hasty return to the United States. See Matter of Huang, 19 I. &
N. Dec. 749, 755-56 (BIA 1988) (holding government met its burden
- 8 - of proving LPR relinquished status where she did not maintain a
residence or have a job in the United States and stayed with
relatives when visiting occasionally). Further, even prior to his
illness, he delayed applying for reentry to the United States,
despite multiple suggestions to do so from immigration officers.
The sticking point of all of this, which was highlighted
at oral argument, is Mahmoud's contention on appeal that he planned
to return to the United States as soon as he obtained employment.
But the only evidence in the record supporting this contention is
Mahmoud's own conclusory testimony that he "look[ed] for work"
each time he returned to the United States. Mahmoud did not
present evidence of any specific efforts he made to find a job,
nor is it obvious why an experienced restaurant worker could not
find a job working in a restaurant in the United States for over
five years. Mahmoud argues though that the burden below is on the
government, so he has no obligation to introduce such evidence.
Mahmoud is not wrong about the burden, but his argument stalls
when one realizes that the government introduced evidence of
Mahmoud's extensive connections to Canada. The government met its
burden with the weight of that evidence, so it need not disprove
Mahmoud's unsupported contention that he wanted a job in the United
States.1 See Katebi, 396 F.3d at 466-67.
1It is worth noting that Mahmoud's own communal or cultural notions regarding family may well be working to his disadvantage here. He
- 9 - Mahmoud makes two more arguments on appeal that require
attention. First, he points out that since returning to the United
States in 2014, he has put his house in Canada on the market, has
taken a job working for one of his brothers in the United States,
and has petitioned for his wife and their child to join here. None
of this undermines the conclusion that Mahmoud abandoned his lawful
permanent resident status during his many years of living and
working in Canada. Second, Mahmoud argues that the BIA made a
factual error when it noted that Mahmoud did not move back to the
United States promptly after his brother opened a restaurant here.
Mahmoud contends that his brother did not open that restaurant
until Mahmoud was in the hospital in 2013, so he did indeed move
as soon as practicable back to the United States to work here.
The transcript excerpts upon which Mahmoud relies reveal some
confusion, apparently brought about by the government's vague
questioning, about which of Mahmoud's brothers is being discussed.
Neither the IJ's or BIA's decisions rely upon this allegedly
only resided with family in the United States and never acquired title to his own home here. Our case law conflates reliance on family for housing with a lack of permanence and does not reward those who stay with their families. See Singh, 113 F.3d at 1515- 16 (collecting and relying upon cases where LPR lost status after only staying with family during trips into the United States). This is not to say that a different level of cultural understanding would make a difference in Mahmoud's case (or many others), but this limited convention of understanding intent certainly establishes a deep hole for Mahmoud (and others who rely on family for housing in the United States) to climb out of.
- 10 - erroneous fact to any meaningful degree and, on the whole, the
decisions are supported by the record evidence. See Elias-
Zacarias, 502 U.S. at 481 n.1 ("To reverse the BIA finding we must
find that the evidence not only supports that conclusion, but
compels it.").
CONCLUSION
For the foregoing reasons, the petition is denied.
- 11 -