NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NANCY YANETH VELASQUEZ- No. 20-73433 FAJARDO, Agency Nos. A044-424-068 Petitioner,
v. MEMORANDUM*
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 4, 2026** Pasadena, California
Before: LEE, KOH, and DE ALBA, Circuit Judges.
Petitioner Nancy Yaneth Velasquez-Fajardo, a native and citizen of
Guatemala, seeks review of the Board of Immigration Appeals’ (“BIA”) dismissal
of her appeal of an Immigration Judge’s (“IJ”) decision finding that she had
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). abandoned her lawful permanent resident (“LPR”) status and ordering her removal.
Petitioner argues that the IJ incorrectly applied the burden of proof and that, under
the correct burden of proof, the U.S. Department of Homeland Security (“DHS”)
did not establish that she abandoned her LPR status. We have jurisdiction under 8
U.S.C. § 1252(b), and we deny the petition.
Where, as here, the BIA affirms the decision of the IJ while adding some of
its own reasoning, we review the decision of the IJ as well as that of the BIA.
Kaur v. Ashcroft, 388 F.3d 734, 736 (9th Cir. 2004). We review both purely legal
questions and mixed questions of law and fact de novo, while we review factual
findings—including the BIA’s determination as to abandonment—under the highly
deferential substantial evidence standard. See Sharma v. Garland, 9 F.4th 1052,
1060 (9th Cir. 2021); Khoshfahm v. Holder, 655 F.3d 1147, 1151 (9th Cir. 2011).
In sum, we “must determine whether there is (1) substantial evidence that (2) the
government has offered ‘clear, unequivocal, and convincing evidence’ of (3) the
ultimate finding necessary to support the abandonment of lawful status.”
Khoshfahm, 655 F.3d at 1151.
1. The agency applied the correct burden of proof and did not place that
burden on Petitioner. We accept that the BIA applied the correct legal standard
when the BIA expressly cites and applies relevant caselaw in rendering its
2 20-72426 decision. Martinez v. Clark, 124 F.4th 775, 785 (9th Cir. 2024). “Generally, in the
absence of any red flags, we take the BIA at its word.” Id.
No such red flags exist here. The IJ correctly stated that the agency bore the
burden of proving by clear, unequivocal, and convincing evidence that the facts
alleged were true, and the IJ cited controlling caselaw in support of that statement.
Khoshfahm, 655 F.3d at 1151; see also Mondaca-Vega v. Lynch, 808 F.3d 413, 417
(9th Cir. 2015) (en banc) (holding that “clear, unequivocal, and convincing” is the
same intermediate standard used in civil cases “when particularly important
individual interests are at stake”). The BIA then reviewed the IJ’s decision-making
and the record in concluding that Petitioner did not maintain a continuous,
uninterrupted intention to return. The BIA also addressed Petitioner’s argument
that she was prevented from returning by her abusive husband and her daughter’s
injury. Finally, the BIA correctly noted that providing Petitioner with the
opportunity to rebut evidence DHS presented in its briefs before the court was not
the same as placing the burden on her in the first instance. Just as DHS was given
an opportunity to submit a brief and evidence, Petitioner was given the chance to
submit a brief and evidence. Thus, the agency applied the correct burden of proof.
2. Substantial evidence supports the BIA’s determination that Petitioner was
inadmissible because she abandoned her LPR status. To qualify as a returning
resident, Petitioner needed to prove that she was returning to “unrelinquished
3 20-72426 lawful permanent residence” after a “temporary visit abroad.” Khoshfahm, 655
F.3d at 1151 (quoting Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997)). A trip
constitutes a “temporary visit abroad” if “it is for a ‘relatively short’ period, fixed
by some early event” or “the trip will terminate upon the occurrence of an event
that has a reasonable possibility of occurring within a relatively short period of
time.” Id.; Khodagholian v. Ashcroft, 335 F.3d 1003, 1006–07 (9th Cir. 2003).
Because Petitioner’s 18-year visit abroad was not “relatively short,” see
Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th Cir. 1986) (remarking that “[i]f a
permanent resident left the United States on a visit that would not end for twenty
years, the visit would not be permanent but it hardly could be considered
temporary either”), the determination of whether she abandoned her LPR status
turns on whether she had a continuous, uninterrupted intention to return to the
United States “during the entirety of [her] visit.” Khodagholian, 335 F.3d at 1007
(quotation omitted). The “relevant intent” of the petitioner “is not the intent to
return ultimately, but the intent to return to the United States within a relatively
short period.” Id. (quotation omitted). To determine intent, relevant factors
include the petitioner’s testimony; family ties, property holdings, or business
affiliations in the United States; the duration of their residence in the United States;
and their family, property, and business ties in the foreign country. Chavez-
Ramirez, 792 F.2d at 937. The IJ and BIA may also consider whether a resident
4 20-72426 has acquired substantial or permanent ties to the foreign country during the visit.
See id. However, a resident’s desire to retain her status as a permanent resident,
without more, is not sufficient to maintain a continuous, uninterrupted intention to
return; rather her actions must support her professed intent. Khodagholian, 335
F.3d at 1007.
Accounting for these factors, the BIA reasonably determined Petitioner did
not maintain a continuous, uninterrupted intention to return to the United States.
The BIA noted that Petitioner had no property ties to the United States before
returning to Guatemala, and that, in contrast, Petitioner had a second child, married
the father of her children, maintained employment, and had a fixed address while
living in Guatemala. The BIA also highlighted that Petitioner made no attempt to
acquire a new LPR card after separating from her husband nor any attempt to
immigrate with her dependent daughter to the United States.
Acknowledging that Petitioner may have been prevented from returning to
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NANCY YANETH VELASQUEZ- No. 20-73433 FAJARDO, Agency Nos. A044-424-068 Petitioner,
v. MEMORANDUM*
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 4, 2026** Pasadena, California
Before: LEE, KOH, and DE ALBA, Circuit Judges.
Petitioner Nancy Yaneth Velasquez-Fajardo, a native and citizen of
Guatemala, seeks review of the Board of Immigration Appeals’ (“BIA”) dismissal
of her appeal of an Immigration Judge’s (“IJ”) decision finding that she had
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). abandoned her lawful permanent resident (“LPR”) status and ordering her removal.
Petitioner argues that the IJ incorrectly applied the burden of proof and that, under
the correct burden of proof, the U.S. Department of Homeland Security (“DHS”)
did not establish that she abandoned her LPR status. We have jurisdiction under 8
U.S.C. § 1252(b), and we deny the petition.
Where, as here, the BIA affirms the decision of the IJ while adding some of
its own reasoning, we review the decision of the IJ as well as that of the BIA.
Kaur v. Ashcroft, 388 F.3d 734, 736 (9th Cir. 2004). We review both purely legal
questions and mixed questions of law and fact de novo, while we review factual
findings—including the BIA’s determination as to abandonment—under the highly
deferential substantial evidence standard. See Sharma v. Garland, 9 F.4th 1052,
1060 (9th Cir. 2021); Khoshfahm v. Holder, 655 F.3d 1147, 1151 (9th Cir. 2011).
In sum, we “must determine whether there is (1) substantial evidence that (2) the
government has offered ‘clear, unequivocal, and convincing evidence’ of (3) the
ultimate finding necessary to support the abandonment of lawful status.”
Khoshfahm, 655 F.3d at 1151.
1. The agency applied the correct burden of proof and did not place that
burden on Petitioner. We accept that the BIA applied the correct legal standard
when the BIA expressly cites and applies relevant caselaw in rendering its
2 20-72426 decision. Martinez v. Clark, 124 F.4th 775, 785 (9th Cir. 2024). “Generally, in the
absence of any red flags, we take the BIA at its word.” Id.
No such red flags exist here. The IJ correctly stated that the agency bore the
burden of proving by clear, unequivocal, and convincing evidence that the facts
alleged were true, and the IJ cited controlling caselaw in support of that statement.
Khoshfahm, 655 F.3d at 1151; see also Mondaca-Vega v. Lynch, 808 F.3d 413, 417
(9th Cir. 2015) (en banc) (holding that “clear, unequivocal, and convincing” is the
same intermediate standard used in civil cases “when particularly important
individual interests are at stake”). The BIA then reviewed the IJ’s decision-making
and the record in concluding that Petitioner did not maintain a continuous,
uninterrupted intention to return. The BIA also addressed Petitioner’s argument
that she was prevented from returning by her abusive husband and her daughter’s
injury. Finally, the BIA correctly noted that providing Petitioner with the
opportunity to rebut evidence DHS presented in its briefs before the court was not
the same as placing the burden on her in the first instance. Just as DHS was given
an opportunity to submit a brief and evidence, Petitioner was given the chance to
submit a brief and evidence. Thus, the agency applied the correct burden of proof.
2. Substantial evidence supports the BIA’s determination that Petitioner was
inadmissible because she abandoned her LPR status. To qualify as a returning
resident, Petitioner needed to prove that she was returning to “unrelinquished
3 20-72426 lawful permanent residence” after a “temporary visit abroad.” Khoshfahm, 655
F.3d at 1151 (quoting Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997)). A trip
constitutes a “temporary visit abroad” if “it is for a ‘relatively short’ period, fixed
by some early event” or “the trip will terminate upon the occurrence of an event
that has a reasonable possibility of occurring within a relatively short period of
time.” Id.; Khodagholian v. Ashcroft, 335 F.3d 1003, 1006–07 (9th Cir. 2003).
Because Petitioner’s 18-year visit abroad was not “relatively short,” see
Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th Cir. 1986) (remarking that “[i]f a
permanent resident left the United States on a visit that would not end for twenty
years, the visit would not be permanent but it hardly could be considered
temporary either”), the determination of whether she abandoned her LPR status
turns on whether she had a continuous, uninterrupted intention to return to the
United States “during the entirety of [her] visit.” Khodagholian, 335 F.3d at 1007
(quotation omitted). The “relevant intent” of the petitioner “is not the intent to
return ultimately, but the intent to return to the United States within a relatively
short period.” Id. (quotation omitted). To determine intent, relevant factors
include the petitioner’s testimony; family ties, property holdings, or business
affiliations in the United States; the duration of their residence in the United States;
and their family, property, and business ties in the foreign country. Chavez-
Ramirez, 792 F.2d at 937. The IJ and BIA may also consider whether a resident
4 20-72426 has acquired substantial or permanent ties to the foreign country during the visit.
See id. However, a resident’s desire to retain her status as a permanent resident,
without more, is not sufficient to maintain a continuous, uninterrupted intention to
return; rather her actions must support her professed intent. Khodagholian, 335
F.3d at 1007.
Accounting for these factors, the BIA reasonably determined Petitioner did
not maintain a continuous, uninterrupted intention to return to the United States.
The BIA noted that Petitioner had no property ties to the United States before
returning to Guatemala, and that, in contrast, Petitioner had a second child, married
the father of her children, maintained employment, and had a fixed address while
living in Guatemala. The BIA also highlighted that Petitioner made no attempt to
acquire a new LPR card after separating from her husband nor any attempt to
immigrate with her dependent daughter to the United States.
Acknowledging that Petitioner may have been prevented from returning to
the United States because of forces outside of her control during a significant
portion of her time abroad, id. at 1008 (accounting for the fact that at least half the
time the petitioner was in a foreign country was involuntary due to an
unanticipated tax claim), Petitioner’s continued presence in Guatemala in the years
after her separation from her husband weighs toward finding she did not maintain a
continuous, uninterrupted intent to return “within a relatively short period.” Id. at
5 20-72426 1007. During the eight-year period that Petitioner stayed in Guatemala after
separating from her husband, Petitioner lived with her two daughters in a house her
mother eventually purchased for her; maintained a job; and did not contact the U.S.
consulate to obtain a replacement LPR card or initiate an immigration petition for
her dependent daughter. This conduct does not reasonably manifest an intent to
return to the United States “as soon as possible.” Khoshfahm, 655 F.3d at 1151
(quotation omitted); see Chavez-Ramirez, 792 F.2d at 937. Examining the record
as a whole, the evidence does not compel a finding that Petitioner maintained a
continuous, uninterrupted intention to return to the United States. See Singh v.
Holder, 656 F.3d 1047, 1051–52 (9th Cir. 2011).
PETITION DENIED.1
1 The temporary stay of removal remains in place until the mandate issues.
6 20-72426