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.
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