New 9th Circut case on abandonment of lawful permanent resident status

Congratulations to attorney Nadia Farah, who won her client the right to retain his lawful permanent resident status ("Green Card" or "LPR" status) in a case published today, August 25, 2011, by the United States Court of Appeals for the Ninth Circuit. Ms. Farah's client, Salar Khoshfahm, a native and citizen of Iran, was a minor child, 13 years of age, when his parents obtained LPR status. It is important to note that they obtained that status through a family petition filed by Mr. Khoshfahm's uncle, a United States Citizen. It is not clear whether the uncle was related to Mr. Khoshfahm's father or his mother. Suffice it to say that a United States Citizen who files an immigrant petition for a sibling often has to wait about 15 years for the visa to become available, since siblings are not considered to be an immediate family member, like a spouse or a minor child. The Khoshfahm family waited at the back of the queue like everybody else until it was their turn to lawfully enter the United States. It is evident that they wanted to make their life in this country.

After what was supposed to be a short trip back to Iran to sell their property, Mr. Khoshfahm's parents remained there. First they had trouble obtaining airline tickets in the wake of the terrorist attacks of September 11, 2001. Shortly thereafter, Mr. Khoshfahm's father experienced a heart condition for which he had to be hospitalized and thereafter restricted his ability to travel.

Mr. Khoshfahm waited patiently until he turned 18 and then immediately set to return to the United States with his Green Card in hand. He was stopped at the airport in San Francisco, CA, where he was referred before an Immigration Judge for removal ("deportation") proceedings by the Immigration and Customs Enforcement under the allegation that he had abandoned his lawful permanent resident status since he had stayed out of the United States for five years.

The Ninth Circuit found that because a child cannot legally form an intent as to domicile, the intent of the child’s LPR parents as to whether they will return to live in the United States is imputed to the child (over whom the parents have custody and control) during the period of the child’s unemancipation. At the point at which the child becomes an adult, however, he may legally demonstrate his intent separate from that of his parents.

The Court further found that the Government did not carry its burden to show Mr. Khoshfahm’s parents had abandoned their LPR status where Mr. Khoshfahm credibly testified that his parents always intended to return to the United States, and that his parents were prevented from returning by the September 11 attacks and then by his father’s heart condition. The Court found that Mr. Khoshfahm's actions clearly demonstrated his intent to return to live in the United States where as soon as he reached the age of adulthood, he immediately obtained the permanent passport that allowed him to travel alone and sought readmission a few months thereafter.

This is an important decision in the area of abandonment of lawful permanent resident status. I do not recall another precedent on this specific issue, where there is a minor child who attempts to return after emancipation. I worked on a factually similar case a few years ago where the immigrant had been forced to return to his native country by his parents, when he was about 3 or 4. There was ample evidence both from United States authorities (child services) and by autorities and witnesses in the native country that all his life, the child had been the subject of severe physical and psychological abuse by the parents. I remember getting chills when reading the child social worker report on the then three year old child that she had never witnessed such horrific abuse in her career. The child's body ha apparently been covered in cigarette burns, and belt marks and he had to be hospitalized and have life-saving surgery. Why the police was never involved to come arrest the parents in the first place before they could flee back to their home country with their abused child, I will never know. Anyways, the child eventually was able to get his Green Card back from his father when he reached the age of majority and immediately set back to the United States. In that case, although he was, like Mr. Khoshfahm, initially detained by ICE agents at the airport and referred for removal proceedings, after he presented evidence of his intent to return to the United States and that he had been forced to leave when he was still a minor child, both the Immigration Judge and counsel for ICE agreed that he had demonstrated that he had not abandoned his LPR status.

I am glad now we have a precedent that clarifies the issues for people in the position of Mr. Khoshfahm. I believe the Court reached a fair and just verdict given the circumstances. Why the government fought them at every step of the way, from the Immigration Court, to the Board of Immigration Appeals, to the Ninth Circuit, is an entirely separate issue.

The entire text of the decision can be read here.

Department of Homeland Security announces Moratorium on Deportation of Dream Act Students

Today, in a letter to Assistant Majority Leader Dick Durbin (D-IL) and 21 other Senators, Department of Homeland Security Secretary Janet Napolitano announced that the Administration has established a new process for handling the deportation cases of DREAM Act students and other sympathetic individuals. If fully implemented, the new process should stop virtually all DREAM Act deportations.

“The Obama Administration has made the right decision in changing the way they handle deportations of DREAM Act students,” Durbin said. “These students are the future doctors, lawyers, teachers and, maybe, Senators, who will make America stronger. We need to be doing all we can to keep these talented, dedicated, American students here, not wasting increasingly precious resources sending them away to countries they barely remember. The Administration’s new process is a fair and just way to deal with an important group of immigrant students and I will closely monitor DHS to ensure it is fully implemented.”

Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on “positive factors” from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria.

On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis.

About the DREAM Act:
The DREAM Act would allow a select group of immigrant students with great potential to contribute more fully to America. These young people were brought to the U.S. as children and should not be punished for their parents’ mistakes. The DREAM Act would give these students a chance to earn legal status if they:

•Came to the U.S. as children (15 or under)
•Are long-term U.S. residents (continuous physical presence for at least five years)
•Have good moral character
•Graduate from high school or obtain a GED
•Complete two years of college or military service in good standing

More information about the DREAM Act can be found here.