Popovici v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 25, 2023
• Docket: 21-541
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Vasile Popovici, No. 21-541

Petitioner, Agency No. A059-973-500

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted April 19, 2023** Portland, Oregon

Before: RAWLINSON and SUNG, Circuit Judges, and MORRIS,*** District Judge.

Petitioner Vasile Popovici, a native of Romania, petitions for review of a

decision of the Board of Immigration Appeals (“BIA”), dismissing an appeal

* 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). *** The Honorable Brian M. Morris, United States District Judge for the District of Montana, sitting by designation.

1 from an order of an Immigration Judge (“IJ”), sustaining the charge of

removability and finding that Popovici had abandoned his lawful permanent

resident status. We have jurisdiction under 8 U.S.C. § 1252. We deny in part

and dismiss in part the petition.

1. Popovici argues that the BIA erred in affirming the IJ’s finding that

he abandoned his lawful permanent resident (“LPR”) status. Whether Popovici

abandoned his LPR status “is an intrinsically fact-specific question and is

therefore reviewed under the substantial evidence standard.” Khodagholian v.

Ashcroft, 335 F.3d 1003, 1006 (9th Cir. 2003). The government bears the

burden of proving by “clear, unequivocal, and convincing evidence that

[Popovici]’s status has changed.” Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir.

1997). Combining our standard of review with the government’s burden, we

must decide “whether substantial evidence supports a finding by clear,

unequivocal, and convincing evidence that [Popovici] abandoned his lawful

permanent residence in the United States.” Khodagholian, 335 F.3d at 1006.

To qualify for re-entry as a returning resident alien, a noncitizen “must be

returning to an ‘unrelinquished lawful permanent residence’ after a ‘temporary

visit abroad.’” Singh, 113 F.3d at 1514 (quoting Matter of Huang, 19 I. & N.

Dec. 749, 753 (1988)). A temporary visit abroad is one that is for “a period

relatively short, fixed by some early event,” or “will 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

2 Cir. 1986). If “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 his visit.” Id. Factors relevant to whether a

noncitizen held a continuous, uninterrupted intent to return to the U.S. include

the noncitizen’s family ties, property holdings, and business affiliations within

the United States; the duration of residence in the United States; family,

property, and business ties in the foreign country; the noncitizen’s conduct

outside the United States, including whether he conferred with American

officials during his visit about retaining his status; and the noncitizen’s purpose

in departing the United States. See id.; Khodagholian, 335 F.3d at 1007; Huang,

19 I&N Dec. at 753.

In this case, between the time when Popovici first came to the U.S. in

2009 and his attempt to return in 2016, Popovici spent approximately five

weeks in the U.S. He never established a residence in the U.S., staying instead

with his brother. He never filed taxes in the U.S., and never opened a bank

account. When he returned to Romania in 2010, he became involved in several

multi-million Euro projects as a volunteer, consultant, and project manager.

Considering these circumstances, substantial evidence supports the IJ’s finding

by clear, unequivocal, and convincing evidence that Popovici abandoned his

LPR status. See Singh, 113 F.3d at 1515; Huang, 19 I&N Dec. at 756–57.

3 Popovici argues that he had a continuous, uninterrupted intention to

return to the U.S. during the entirety of his return to Romania but was prevented

from returning due to the ongoing projects at his foundation, which ended in

2015. The delay caused by those ongoing projects is not the type of delay

outside of a noncitizen’s control that we have found to be consistent with an

intent to return. Compare Chavez-Ramirez, 792 F.2d at 937–38 (noncitizen’s

decision to remain in Mexico for two and a half years after her ill mother no

longer needed her weighed in favor of finding abandonment) with

Khodagholian, 335 F.3d at 1005, 1007 (noncitizen’s 15-month trip to Iran was

not evidence of abandonment when noncitizen was required to remain in Iran

involuntarily because of an unpaid tax bill). But even if Popovici intended to

return to the U.S., his “desire to retain his status as a permanent resident,

without more, is not sufficient; his actions must support his professed intent.”

Singh, 113 F.3d at 1515 (citing Huang, 19 I&N Dec. at 753). Because

substantial evidence supports the IJ’s finding, we deny the petition as to

Popovici’s claim of error related to the abandonment of his LPR status.

2. Popovici raises a due process claim for the first time on appeal. His

claim relates to his attorney’s failure to request voluntary departure. As a

prudential matter, we generally require a noncitizen who argues ineffective

assistance of counsel to exhaust his administrative remedies by first presenting

the issue to the BIA. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.

2000). To do otherwise deprives this court of the benefit of the agency’s

4 expertise and a fully developed record. Id. “A motion to reopen is the

procedural vehicle through which a petitioner may bring, usually for the first

time, an ineffective assistance of counsel claim before the BIA.” Id.at 1123. We

therefore dismiss the petition as to Popovici’s claim of ineffective assistance of

counsel.

PETITION DENIED IN PART, DISMISSED IN PART.