Singh v. Reno

113 F.3d 1512, 97 Daily Journal DAR 6610, 97 Cal. Daily Op. Serv. 3936, 1997 U.S. App. LEXIS 12173, 1997 WL 274746

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 27, 1997
• Docket: No. 96-16373
• Status: Published

Opinions

OPINION

CYNTHIA HOLCOMB HALL, Circuit Judge.

Harbinder Dhariwal Singh, a citizen of India, obtained lawful permanent resident status in the United States on December 1,1990 as a special agricultural worker. From that date to the onset of these proceedings, he has spent less than one-third of his time in the United States. Singh arrived in San Francisco on July 8, 1993 from Great Britain, where he simultaneously enjoyed permanent resident status. Upon arrival, he was placed in exclusion proceedings as an alien not in possession of a valid immigrant visa.

The Immigration and Naturalization Service (“INS”) contends that Singh abandoned his permanent resident status through his extended time abroad and his minimal contacts in this country. After an evidentiary hearing, the Immigration Judge (“D”) ordered Singh excluded. Singh appealed to the Board of Immigration Appeals (“the Board”) which upheld the IJ’s decision for the reasons stated therein. He then petitioned for a writ of habeas corpus to the United States District Court for the Northern District of California. That petition was denied on July 23, 1996, and this appeal followed.

The district court had jurisdiction to review the final order in habeas corpus proceedings. 8 U.S.C. § 1105a(b).¹ We review the final order of the district court pursuant to 28 U.S.C. § 2253. Singh spent a minimal amount of time in this country after receiving his permanent resident status, and he established neither a home nor employment of any permanence whatsoever. We therefore affirm the district court.

I.

The district court review was “limited to whether the Board’s findings of fact were supported by substantial evidence and whether the Board’s decision was arbitrary, capricious, an abuse of discretion, or contrary to law.” DeBrown v. Department of Justice, 18 F.3d 774, 777 (9th Cir.1994). The Board adopted the IJ’s findings and conclusions in this case, however, so the district court focused on the underlying decision of the IJ. See Mabugat v. INS, 937 F.2d 426, 430 n. 2 (9th Cir.1991).

This court reviews de novo the district court’s denial of the petition for a writ of habeas corpus. Chen v. INS, 95 F.3d 801, 804 (9th Cir.1996). This court therefore conducts the same inquiry as the district court and reviews the underlying factual findings for substantial evidence as well. Chavez-Ramirez v. INS, 792 F.2d 932, 934-35 (9th Cir.1986). To reverse under the substantial evidence standard, the evidence must be so compelling that no reasonable factfinder could fail to find the facts were as the alien alleged. INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 817, 117 L.Ed.2d 38 (1992).

II.

When an applicant has a colorable claim to returning resident status, as Singh does, the INS has the burden of proving he is not eligible for admission to the United States. See Landon v. Plasencia, 459 U.S. 21, 35, 103 S.Ct. 321, 330-31, 74 L.Ed.2d 21 (1982). The INS’ burden, therefore, is to establish by clear, unequivocal, and convincing evidence that Singh’s status has changed. Woodby v. INS, 385 U.S. 276, 277, 87 S.Ct. 483, 484, 17 L.Ed.2d 362 (1966). “[I]n order to 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 he 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 (1988) (quoting Santos v. INS, 421 F.2d 1303, 1305 (9th Cir.1970)).

The crucial inquiry is whether Singh’s extended trips constitute “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. Chavez-Ramirez, 792 F.2d at 936-37. Singh’s trips abroad, sometimes eight or nine months in consecutive duration, could not be described as “relatively short.”

If the alien’s trip abroad is not “relatively short,” it is 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. at 937. The relevant intent is not the intent to return ultimately, but the intent to return to the United States within a relatively short period. Id. In sum, a legal permanent resident may plan only a relatively short trip. He may extend his trip beyond that relatively short period only if he intends to return to the United States as soon as possible thereafter.

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. An alien’s desire to retain his status as a permanent resident, without more, is not sufficient; his actions must support his professed intent. Huang, 191. & N. Dec. at 753.

Singh’s few established connections to the United States, despite over two and a half years of legal permanent resident status, clearly and convincingly demonstrate his lack of an intent to reside in the United States. Singh’s close ties to his immediate family— his wife and daughter who reside abroad— were the proffered reasons for his extensive absences from this country. Although their pending Family Based immigrant visa petition filed by Singh in 1992 prevented them from residing in the U.S. as immigrants, they were free to visit. Singh’s decision to spend most of his time abroad is evidence of his lack of ties to the United States.

Nor does Singh’s employment history provide any evidence of an intent to reside permanently in the United States. Although Singh attained his permanent resident status as a special agricultural worker, he quickly changed careers. Singh worked at a restaurant in Carmel, California, but his long absences from the country were such that his employment history was sporadic. When working at the restaurant, Singh lived in housing provided by his employer. He never established his own residence in the United States during his entire time as a permanent legal resident.

Furthermore, Singh’s dealings with immigration procedures are further evidence that he did not intend to reside permanently in this country. Singh listed an address in England as his permanent address on his replacement Indian passport, issued less than two months after attaining permanent resident status in the United States. One month later, Singh applied for and received a visitor’s visa at the U.S. consulate in London. In his consular interview for that visa, Singh did not raise the issue about his permanent residence status. Singh used that visa to enter the U.S. four times, even though a permanent resident does not require such a visa. See Chavez-Ramirez, 792 F.2d at 934. On Singh’s last visit to the United States, he checked “NO” when asked if he resided permanently in this country, checked “PLEASURE” for the purpose of his visit, and wrote that he expected to stay 3 weeks. Singh was a seasoned world traveler who had successfully secured permanent resident status in both the U.K. and the U.S. The above events cannot all be classified as inadvertent. Rather, the IJ reasonably concluded that they were evidence that Singh did not intend to remain a permanent resident of the United States.

Determining an alien’s intent is an essentially factual inquiry, see id., and the facts of this case do not show the requisite intent necessary for an alien to maintain his permanent resident status. Singh attained that status on December 1, 1990. It is unclear where he was until March 13, 1991 when he entered the United States from Vancouver, B.C. He spent most of the next three months in the United States and then departed for the United Kingdom on June 20,1991. Singh did not return to the United States until nine months later on March 23, 1992. He remained almost four months and then returned to the United Kingdom on July 17, 1992. He did not return to the United States until almost eight months later on March 8, 1993. In sum, after attaining permanent resident status on December 1, 1990, Singh spent only 185 out of the next 829 days (22%) in the United States.² Furthermore, in the brief periods Singh spent in the United States he neither maintained his own residence, nor a job of any permanence.

Singh’s pattern, therefore, was to live abroad most of the year and to spend his summers working in California and living in a dwelling furnished by his employer. Several cases have held that aliens relinquish their permanent resident status in directly analogous circumstances. See, e.g., Alvarez v. District Director, 539 F.2d 1220, 1222 (9th Cir.1976) (alien relinquished permanent resident status despite spending two or three consecutive months living in the U.S. and staying with friends); Angeles v. District Director, 729 F.Supp. 479, 481 (D.Md.1990) (10- to 11-month annual absences and residing at relative’s home in U.S.); Huang, 19 I. & N. Dec. at 750 (11-month annual trips abroad and residing at relative’s home while in U.S.); Kane, 15 I. & N. Dec. at 258 (11-month annual absences from U.S. and residing in rented furnished home while in U.S.). Singh made long trips abroad of nine months and almost eight months, without any residence or employment of any permanence to return to. The slight difference in the duration of Singh’s long trips abroad and those in the above cases does not convert Singh’s extensive absences to “temporary visits abroad.”

The INS argues that these activities are consistent with those of a nonimmigrant visitor for business and we agree. The evidence clearly shows a visitor who spent a sporadic amount of time in the United States until he could establish a permanent residence in this country “at some indefinite time in the possibly distant future.” Angeles, 729 F.Supp. at 484. Singh spent his summers in California, but spent the vast majority of his time abroad in anticipation of his wife and daughter attaining legal immigrant status. These visits do not qualify as “temporary” and, by making them, Singh abandoned his legal permanent residency in the United States. See Huang, 19 I. & N. Dec. at 756 (permanent residency relinquished when family lived in Japan while waiting for husband to finish doctoral studies so they could all move to the United States); see also Angeles, 729 F.Supp. at 481 (alien not permitted to spend a month or two annually in the U.S. with the intention of retaining permanent resident status); Kane, 15 I. & N. Dec. at 258 (same).

The district court’s denial of the petition for writ of habeas corpus is AFFIRMED.

1 . 8 U.S.C. § 1105a was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009, which President Clinton signed into law on September 30, 1996. The repeal only applies to final orders of deportation or removal and motions to reopen that are filed on or after that date.

2 . Although his most recent trip abroad was less than a month, Singh abandoned his legal permanent resident status long before with his extensive trips abroad. See Kane, 15 I. & N. Dec. at 265 (alien abandoned permanent resident status in 1967 despite making several more trips to the U.S. until 1972).