Rezvan Karimijanaki v. Eric H. Holder, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0313p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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REZVAN GHOLAMHOSSEIN KARIMIJANAKI and X

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Petitioners, --

HESAMEDDIN NOSSONI,

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No. 08-4622

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>

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v.

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ERIC H. HOLDER, JR., United States Attorney

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General,

Respondent. -

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On Petition for Review of an Order

of the Board of Immigration Appeals.

Nos. A45 832 080; A45 832 083.

Argued: August 5, 2009

Decided and Filed: August 28, 2009

Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: Marshal E. Hyman, MARSHAL E. HYMAN & ASSOCIATES, PC, Troy,

Michigan, for Petitioners. M. Jocelyn Lopez Wright, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Marshal E. Hyman, Russell

Reid Abrutyn, MARSHAL E. HYMAN & ASSOCIATES, PC, Troy, Michigan, for

Petitioners. M. Jocelyn Lopez Wright, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

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OPINION

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GRIFFIN, Circuit Judge. Rezvan Gholamhossein Karimijanaki and her son,

Hesameddin Nossoni, seek review of a decision of the Board of Immigration Appeals (“BIA”

or “Board”) affirming an immigration judge’s (“IJ”) order that they be removed to their

native country of Iran. Because sufficient evidence supports the Board’s and IJ’s rulings that

1

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Karimijanaki abandoned her lawful permanent resident status, her seven-year absence from

the United States was not a temporary visit abroad, her conduct was imputable to Nossoni

(an unemancipated minor during the relevant period), and Nossoni did not automatically

acquire citizenship based upon his father’s naturalization prior to the removal proceedings,

we deny the petition for review.

I.

In October 1997, Karimijanaki and her husband, Ali Nossoni, along with three of

their four children, Golrokh, Farideddin, and eight-year-old Hesameddin Nossoni, were

admitted as lawful permanent residents (“LPR”) pursuant to an immigrant visa petition filed

1

by Ali’s brother in 1986. Their fourth child, Zahra, remained in Iran because she was 21

years old and therefore ineligible for derivative LPR status from her uncle’s petition.

That same year, Ali filed a petition for Zahra to immigrate to the United States as the

unmarried daughter of a lawful permanent resident.

Following his admission, Ali remained in the United States. Karimijanaki,

however, returned to Iran with her children after spending one month in the United

States.2 Her stated purpose in doing so was to care for Zahra, who had no immigrant

visa and was culturally forbidden from living alone in Iran as an unmarried woman.

Although Karimijanaki’s mother and sister lived in Iran, Karimijanaki testified that they

could not serve as Zahra’s chaperones because they did not reside in Tehran, where

Zahra attended a university. According to Karimijanaki, Zahra could neither transfer to

a different school nor live in a dormitory because she was a Tehran resident (the dorms

were reserved for students from outside the region) and employed. Believing that she

could remain abroad for as long as ten years – the valid period of her immigrant visa –

and still retain her LPR status, Karimijanaki intended to remain in Iran until Zahra

received her LPR status, a process she was told would take approximately two years but

which, in reality, took ten.

1

The parties agree that portions of the record incorrectly list January 1997 as the date of

admission.

2

Petitioners’ assertion in their appellate brief that two of the children lived with their father in the

United States from 1997 until 2005 contradicts petitioner Hesameddin Nossoni’s testimony.

No. 08-4622 Karimijanaki v. Holder Page 3

In 2003 or 2004, Golrokh and Farideddin returned to the United States to live

with their father in Michigan, where they attended college. Petitioners Karimijanaki and

Hesameddin Nossoni, however, remained continuously in Iran until their return to the

United States in June 2005. While living in Iran during this approximately seven-year

period, petitioner Hesameddin Nossoni attended school. Petitioner Karimijanaki did not

work but supported herself and her children with money her husband sent from the

United States. In addition, she received some assistance from Zahra. Karimijanaki

owned two apartments in Iran and had a joint bank account with Zahra. She did not own

a home, work, or have a bank account in the United States, and she had no permits

authorizing her re-entry to the United States.

Ali Nossoni traveled twice from the United States to Iran to visit his family. His

trips included a 35-day visit in 1999, and a four- to six-week visit at an unspecified later

date.

Although Zahra had not yet acquired an immigrant visa, petitioners nevertheless

returned to the United States without her in June 2005 so that petitioner Hesameddin

Nossoni, who was then sixteen years old, could avoid mandatory military service in Iran.

Allegedly, the Iranian government did not allow males to leave Iran once they turned

seventeen to insure their availability for military service at eighteen.

Upon their attempted re-entry to the United States in June 2005, Karimijanaki

had an open-ended return ticket to Iran that was valid for one year, but petitioner

Hesameddin Nossoni had a one-way ticket. Karimijanaki told immigration officials that

she intended to stay in the United States for one year, during which time she planned to

resolve Zahra’s visa issue and apply for citizenship. If she could not achieve these goals,

Karimijanaki acknowledged that she “might return” to Iran to re-join Zahra, although

she would “forget the ticket” if required to stay longer in the United States.

Immigration authorities served Karimijanaki and her son with notices to appear

alleging that they had abandoned their permanent residence in the United States and

were subject to removal because they did not have valid visas or entry documents.

Petitioners denied that they had abandoned their residence and were removable, and they

No. 08-4622 Karimijanaki v. Holder Page 4

were granted temporary parole into the United States pending a hearing before an

immigration judge.

Within months of petitioners’ attempted re-entry to the United States,

Karimijanaki’s mother passed away, and her sister, who was retired and had been caring

for her mother, moved to Tehran to live with Zahra. They lived together from 2005 until

2007. In 2005 or 2006, Zahra earned her master’s degree from the Tehran university she

attended.

At the July 20, 2007, merits hearing, both petitioners were represented by private

counsel and were the only witnesses to testify.3 Karimijanaki testified that she had not

left the United States since her return in June 2005, that her husband had obtained his

United States citizenship, and that Zahra had received her immigrant visa through her

father’s petition and was flying to the United States that evening. Ali Nossoni, who

lived and worked previously in Detroit for five years, had accepted employment and

began living in Anaheim, California, approximately two-and-a-half years before the

hearing. Karimijanaki, Golrokh, Farideddin, and petitioner Hesameddin Nossoni,

however, lived in Detroit because the children were attending college in the area.

Petitioner Hesameddin Nossoni also testified that on the day of the hearing, his

unmarried sister Golrokh was traveling by herself in Greece.

In his written opinion, the IJ ruled that Karimijanaki abandoned her LPR status

and that her seven-year absence from the United States was not a “temporary visit

abroad,” imputed her conduct to her minor son, petitioner Hesameddin Nossoni, rejected

his claim that he automatically acquired United States citizenship when his father was

naturalized in 2006, found petitioners removable, and ordered that they be removed to

Iran. Subsequently, the Board dismissed petitioners’ appeal, affirming all of the IJ’s

rulings but not addressing the claim that petitioner Hesameddin Nossoni automatically

acquired citizenship upon his father’s naturalization.

Petitioners timely requested review.

3

Ali Nossoni was present and available to testify at the hearing but was not called as a witness.

No. 08-4622 Karimijanaki v. Holder Page 5

II.

Where the Board affirms the IJ’s ruling but adds its own comments, we review

both the IJ’s decision and the Board’s additional remarks. Gilaj v. Gonzales, 408 F.3d

275, 283 (6th Cir. 2005). A deportability order is valid only if “it is based upon

reasonable, substantial, and probative evidence.” 8 U.S.C. § 1229a(c)(3)(A). The

Supreme Court has defined “substantial evidence” as “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion” and “enough

[evidence] to justify, if the trial were to a jury, a refusal to direct a verdict when the

conclusion sought to be drawn from it is one of fact for the jury.” Consolo v. Fed.

Maritime Comm’n, 383 U.S. 607, 619-20 (1966) (defining “substantial evidence” under

the Administrative Procedure Act) (citations omitted). The Court has cautioned that

“something less than the weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent an administrative agency’s

finding from being supported by substantial evidence.” Id. In other words, “[u]nder this

deferential standard, we may not reverse the Board’s determination simply because we

would have decided the matter differently.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir.

2001).

“[A]dministrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary[.]” 8 U.S.C.

§ 1252(b)(4)(B); Huang v. Mukasey, 523 F.3d 640, 651 (6th Cir. 2008). Although legal

conclusions are given fresh review, see Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir.

2006), we give “deference to the BIA’s reasonable interpretation of the statutes and

regulations.” Lin v. Holder, 565 F.3d 971, 976 (6th Cir. 2009) (citing Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843-44 (1984)).

A.

Karimijanaki challenges the Board’s decision affirming the IJ’s rulings that she

abandoned her LPR status and that her more than seven-year absence from the United

States between the latter part of 1997 and June 2005 was not a “temporary visit abroad.”

No. 08-4622 Karimijanaki v. Holder Page 6

1.

“The term ‘lawfully admitted for permanent residence’ means the status of

having been lawfully accorded the privilege of residing permanently in the United States

as an immigrant in accordance with the immigration laws, such status not having

changed.” 8 U.S.C. § 1101(a)(20). An LPR who returns from a visit abroad may be

considered a “returning resident” eligible for re-entry to the United States without

producing a passport, immigrant visa, re-entry permit, or other document. 8 U.S.C.

§ 1101(a)(27)(A); 22 C.F.R. § 42.22(a); 8 U.S.C. § 1181(b). However, to justify those

privileges, the alien must have “departed from the United States with the intention of

returning and has not abandoned this intention” and “is returning to the United States

from a temporary visit abroad and, if the stay abroad was protracted, this was caused by

reasons beyond the alien’s control and for which the alien was not responsible.” 22

C.F.R. § 42.22(a)(2) & (3). In addition, “[a]n alien lawfully admitted for permanent

residence in the United States shall not be regarded as seeking an admission into the

United States . . . unless the alien . . . has abandoned or relinquished that status” or “has

been absent from the United States for a continuous period in excess of 180 days[.]” 8

U.S.C. § 1101(a)(13)(C)(i) & (ii).

The parties agree that where, as here, petitioners have “‘colorable claim[s] to

returning resident status, . . . the [government] has the burden of proving [they are] not

eligible for admission to the United States.’” Hana v. Gonzales, 400 F.3d 472, 475 (6th

Cir. 2005) (quoting Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997)). That burden

requires the government to establish petitioners’ ineligibility for admission by “clear and

convincing evidence.” 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a); Pickering v.

Gonzales, 465 F.3d 263, 269 n.3 (6th Cir. 2006). “[A] decision that an alien is not

eligible for admission to the United States is conclusive unless manifestly contrary to

law[.]” 8 U.S.C. § 1252(b)(4)(C).

In determining whether an alien has abandoned her LPR status, we examine “the

totality of the alien’s circumstances,” including “the location of the alien’s family,

property, and job, and of course the length of the alien’s trip(s) abroad” but also “other

No. 08-4622 Karimijanaki v. Holder Page 7

evidence in the record demonstrating the alien’s intent with regard to maintaining her

LPR status.” Hana, 400 F.3d at 476. The alien’s intent is measured by an objective

standard. See Singh, 113 F.3d at 1515 (“An alien’s desire to retain his status as a

permanent resident, without more, is not sufficient; his actions must support his

professed intent.”). However, an individual with LPR status may also abandon that

status by unintentional acts. In re Duarte, 18 I. & N. Dec. 329, 332 n.3 (BIA 1982)

(“Lawful permanent resident status may . . . be lost through abandonment, intentional

or unintentional[.]”).

The term “temporary” in “temporary visit abroad” “is not merely an antonym of

‘permanent,’” Singh, 113 F.3d at 1514; rather, a visit abroad is temporary “if (a) it is for

a relatively short period, fixed by some early event; or (b) . . . will terminate upon the

occurrence of an event that has a reasonable possibility of occurring within a relatively

short period of time.” Hana, 400 F.3d at 476 (quoting and approving Singh, 113 F.3d

at 1514); see also Hana, 400 F.3d at 476 (approving the Second Circuit’s clarification

that “when the visit ‘relies upon an event with a reasonable possibility of occurring

within a short period of time . . . the intention of the visitor must still be to return within

a period relatively short, fixed by some early event.’”) (quoting Ahmed v. Ashcroft, 286

F.3d 611, 613 (2d Cir. 2002)).

2.

After a thorough analysis, the Board and IJ ruled that Karimijanaki abandoned

her residence and took more than a temporary visit abroad. Supporting those

conclusions, they found that, from the latter part of 1997 until June 2005, Karimijanaki

never lived longer than one month in the United States and neither made a single return

visit to the United States nor applied for a re-entry permit. The IJ also deemed it

significant that, although three of her four children obtained immigrant visas through

their uncle’s petition and her husband remained in the United States, Karimijanaki

nevertheless took all three children back with her to Iran in 1997, where they lived for

an extended five- to seven-year period.

No. 08-4622 Karimijanaki v. Holder Page 8

The Board and IJ noted that when Karimijanaki returned to the United States in

June 2005, her admitted purpose was not to remain in the United States; rather, she

desired to help her son avoid mandatory military service in Iran, resolve her daughter’s

visa issues, and merely apply for citizenship (without staying). After her intended year-

long visit to the United States, Karimijanaki again planned to return to Iran to live with

Zahra, who was then a 29-year-old adult residing with her aunt, until her daughter

obtained an immigrant visa.

The Board agreed with the IJ’s characterization of Karimijanaki’s argument that

cultural norms compelled her to live with Zahra as “overstated.” The IJ noted that

Karimijanaki told an immigration officer that she planned to leave Zahra alone in Iran

during her intended year-long stay in the United States in 2005; that Zahra’s aunt began

living with Zahra two months after Karimijanaki’s June 2005 arrival in the United

States, thereby leaving Zahra alone in Iran for the two months before her aunt joined her;

and that Karimijanaki’s younger, unmarried daughter Golrokh was traveling by herself

in a foreign country on the hearing date. Based upon this evidence, the IJ found that

while Karimijanaki “may have strongly preferred her daughter not live alone, this

preference clearly did not amount to an entirely inflexible prohibition.”

Assuming arguendo that such cultural norms prohibited unmarried women from

living alone in Iran, the IJ rejected Karimijanaki’s contention that Zahra could not live

with her aunt after she finished her bachelor’s degree. The IJ also questioned why

Karimijanaki had to return to Iran to accompany her unmarried daughter in 2005 when

Zahra was not then living alone, but was companioned by her aunt. In other words,

granting that Karimijanaki may initially have been compelled to return to Iran, the IJ

reasoned that “she remained in Iran by choice long after necessity demanded it.”

The IJ was further persuaded by the extent of Karimijanaki’s ties to Iran and the

absence of her contacts with the United States between 1997 and June 2005. In

particular, Karimijanaki had a joint bank account with Zahra, owned two apartments, and

sent her children to school in Iran. She had no home or bank account in the United

States. Although her husband lived and worked in the United States, Karimijanaki never

No. 08-4622 Karimijanaki v. Holder Page 9

traveled to the United States to visit him during the entire seven-year period. Instead,

her husband traveled twice to Iran to visit his family.

Finally, the IJ ruled that Karimijanaki’s absence from the United States was not

a “temporary visit abroad.” Notwithstanding her approximately seven-year stay in Iran

after obtaining LPR status, the IJ found that she intended to remain in Iran until her

daughter married or obtained an immigrant visa. These events, according to the Board

and IJ, did not have a “reasonable possibility” of occurring “within a short time period,”

but their occurrences, if at all, were “indefinite.” The IJ characterized as “completely

unreasonable” Karimijanaki’s belief that Zahra would receive her immigrant visa in two

years because the process took six years at that time, and Karimijanaki had waited

eleven years to acquire her own immigrant visa. Giving Karimijanaki the benefit of the

doubt, however, the IJ reasoned that “[a]lthough [she] may have initially believed it

would only take two years [for Zahra to obtain her immigrant visa], at some point during

the ten-year process, she must have become aware that the process would actually take

much, much longer.” In any event, the IJ concluded that it was “speculative” whether

Zahra would even receive a visa.

Based upon these findings, the IJ ruled that “[i]t was [Karimijanaki’s] two trips

to the United States, not her life in Iran, which constituted temporary visits abroad.” In

addition, her “inten[t] to reside in the United States eventually at some nebulous point

in the future” was “insufficient to show she did not intend to abandon her residency.”

3.

Although Karimijanaki concedes that “[w]hile the amount of time [she] spent in

Iran would, by itself, support a finding of abandonment,” she argues that “the totality of

the circumstances compels” a contrary conclusion. Her central complaint is that “[t]he

BIA severely punished [her] for attempting to fulfill her obligation[]” to care for Zahra

in Iran until Zahra received her own immigrant visa. She acknowledges that “[t]he time

. . . this took was not fixed by a definite end date but there was a reasonable possibility

that it would happen within a short time period.” According to Karimijanaki, legislation

passed by the Congress in 2002 would have protected her family from separation,

No. 08-4622 Karimijanaki v. Holder Page 10

thereby allowing her to avoid having to return to Iran, but she regrets that such

legislation “came too late.” She also asserts that her ties to the United States were

“cement[ed]” because her husband lived and worked in the United States and provided

her with financial support, and her children, Golrokh and Farideddin, lived and studied

in the United States. Moreover, she highlights her husband’s naturalization as evidence

of her own intent to become a United States citizen. “To conclude that Ms. Karimijanaki

intended to abandon her status,” she argues, “would mean that she intended for her three

oldest children and her husband to obtain lawful permanent residency and United States

citizenship without her.” Finally, Karimijanaki asserts that she misunderstood the law,

incorrectly assumed that she could remain abroad for the ten-year period in which her

immigrant visa was valid without jeopardizing her LPR status, and miscalculated the

length of time required for Zahra to receive her immigrant visa.

In support of her arguments, she relies upon our decision in Hana v. Gonzales.

After acquiring her LPR status, Hana immediately filed immigrant visa petitions for her

husband and children and was told that her children would receive visas within three

years. Hana, 400 F.3d at 474. Two months after acquiring her LPR status, Hana

returned to her job in Saddam Hussein’s Iraq where she spent “the bulk of her time” over

a four-and-a-half-year period. Id. at 473-74. Hana testified that if she did not return to

Iraq or her government employer discovered that she was attempting to emigrate to the

United States, the Iraqi regime would threaten to hurt her family or prevent her from

fleeing. Id. at 474. Two years later, Hana returned to the United States with a re-entry

permit, intending to remain permanently in the United States and wait for her children

to join her. Id. She brought with her over $10,000 in gold jewelry and money, with

which she planned to purchase a home and car and help provide for her children when

they arrived. Id. Two months later, however, Hana left for Iraq because of her mother-

in-law’s critical health condition, again obtaining a re-entry permit valid for two years.

Id. Although Hana did not want to continue working in Iraq, she testified that she did

so to provide for her family and because she feared for their safety when her employer

contacted her and told her to return. Id. A year later, she attempted to leave Iraq for the

United States but was turned back at the Iraqi border. Id. Hana traveled successfully to

No. 08-4622 Karimijanaki v. Holder Page 11

the United States just under two years after she last left and two weeks before her re-

entry permit was set to expire. Id. She had a ticket for a return flight to Jordan in four

months but told immigration officials that she would not leave the United States unless

she obtained another re-entry permit and that she planned to stay in the United States

once her children received their visas. Id. Hana did not work, pay income taxes, or own

property in the United States. Id. at 474-75.

Although the IJ ruled that Hana’s trips to Iraq were “temporary visits abroad,”

the Board vacated that decision and ordered Hana deported to Iraq. Id. at 475. The

Board held that Hana abandoned her LPR status because she lived in the United States

for only three months during the relevant four-and-a-half-year period and that she lived

and worked in Iraq, where her family, permanent employment, and property were

located. Id. It also found persuasive that Hana had no property, bank account, doctor,

or driver’s license in the United States, and that she did not pay taxes. Id.

We granted Hana’s petition for review and vacated the Board’s decision, holding

that the evidence was insufficient to support the Board’s ruling that Hana abandoned her

LPR status. Id. at 476. Although we acknowledged that, “in many cases the[] factors

[upon which the Board relied] would rightly counsel in favor of finding that [Hana] had

abandoned her LPR status,” we held that “they do not lead to that conclusion in this case,

where it is clear that Hana’s failure to put down roots in the United States was due

almost entirely to her desire to help her loved ones safely flee a brutal totalitarian regime

and to her obligation to assist in the care of her terminally ill mother-in-law.” Id. at 477.

We also found it persuasive that Hana was told that her children would be granted visas

within three years, believed that she could travel between Iraq and the United States

without losing her LPR status so long as she had unexpired re-entry permits, transported

her valuables to the United States to “lay the foundation for her family’s life in the

United States,” “inten[ded] all along . . . to facilitate her family members’ joining her in

the United States,” ultimately succeeded in bringing her family to the United States

solely because of her LPR status, did not intend her family to become permanent

No. 08-4622 Karimijanaki v. Holder Page 12

residents without her, and spent most of her time in Iraq during the relevant period not

for “convenience,” but for “the safety and welfare of her family.” Id. at 476-77.

Petitioners’ reliance upon Hana is misplaced. When examined through the

deferential lens required for the “intrinsically fact-specific” issues of abandonment and

temporary visits, see Chavez-Ramirez v. INS, 792 F.2d 932, 935 (9th Cir. 1986), the

evidence of record, as articulated accurately and analyzed thoroughly by the IJ and

Board, supports their rulings that petitioner Karimijanaki abandoned her LPR status and

did not take a temporary visit abroad. In contrast to Hana, Karimijanaki did not make

any return trips to the United States during her more than seven-year absence from the

United States even though her husband (and later, two of her children) were living,

working, and studying in the United States, and she desired that three of her children

(who had their immigrant visas) grow up and be schooled in their native country until

they were of college age. Even when she returned to the United States in 2005,

Karimijanaki had no intent to reside permanently in the United States; rather, she desired

to travel to Iran to once again reside with her then 29-year-old adult daughter who was

not living alone.

Unlike Hana, the record is devoid of evidence suggesting that Karimijanaki

returned to Iran because she feared for her family’s safety and welfare; rather,

Karimijanaki attempted to justify her initial and intended returns based upon cultural

forces that purportedly prohibited her unmarried adult daughter from living alone in Iran.

However, we need not determine whether cultural reasons or traditions excuse an alien’s

extended absence from the United States and preserve her LPR status because the

undisputed evidence in this case undermines the legitimacy of Karimijanaki’s articulated

rationale: she fails to explain why culture compelled her to return to Iran in 2005 when

her daughter Zahra was not then living alone but was living with her aunt, and why she

permitted her unmarried daughters to live and travel alone at various periods. She also

does not adequately explicate why she took no affirmative steps within a seven-year

period – such as obtaining re-entry permits or making a single visit to the United States

– that might indicate her lack of intent to abandon her LPR status. Even assuming that

No. 08-4622 Karimijanaki v. Holder Page 13

Karimijanaki intended to live abroad until her daughter obtained her immigrant visa or

was married, we agree with the Board and IJ that the occurrence of these events was

speculative and therefore lacked the “reasonable possibility” of occurring “within a short

time period” required to qualify her seven-year absence as a “temporary visit abroad.”

We emphasize that had Congress “intended to allow permanent residents to reenter the

United States and retain their status after ‘all visits abroad that are not permanent’ it

could have done so.” Id. at 936.

For these reasons, we hold that sufficient evidence supports the IJ’s rulings,

affirmed by the Board, that the government proved by clear and convincing evidence

that Karimijanaki abandoned her LPR status and did not take a “temporary visit abroad”

between 1997 and June 2005, and the evidence of record does not compel a contrary

conclusion.

B.

The IJ, affirmed by the Board, imputed Karimijanaki’s abandonment of her LPR

status to her son, petitioner Nossoni, who was a sixteen-year-old unemancipated minor

in June 2005. Although petitioners concede that petitioner Nossoni’s parents’ intent was

properly imputable to him, they contend that the IJ erred in imputing the intent of his

mother, who abandoned her LPR status, rather than the intent of his naturalized father.

“Faced with two equally compelling intents,” they argue, “the [Department of Homeland

Security] could not meet its burden of proving that [petitioner Nossoni] abandoned his

[LPR] status.” Petitioners also complain that “[t]he agency chose the intent that will

lead to the further separation of this family[,]” thereby contravening the law’s purported

purpose of encouraging “family unity.”

Although we have not yet approved the imputation of a parent’s abandonment

of LPR status to the parent’s unemancipated child, we now hold that such imputation

may be allowed consistent with well-established authority. See Miss. Band of Choctaw

Indians v. Holyfield, 490 U.S. 30, 48 (1989) (“Since most minors are legally incapable

of forming the requisite intent to establish a domicile, their domicile is determined by

that of their parents.”); Singh v. Gonzales, 451 F.3d 400, 409 (6th Cir. 2006)

No. 08-4622 Karimijanaki v. Holder Page 14

(acknowledging the “BIA’s history of imputing parents’ . . . intent to abandon LPR

status to their minor children”)4; Senica v. INS, 16 F.3d 1013, 1016 (9th Cir. 1994)

(holding that the BIA correctly imputed a parent’s knowledge that she and her children

were not eligible for entry to the United States to her children); Nikoi v. Att’y Gen. of the

U.S., 939 F.2d 1065, 1071 (D.C. Cir. 1991) (affirming district court’s ruling that minors

abandoned their permanent resident status during their “extended absence[s] from the

United States while . . . in the custody and control of their parents” because it “comports

with INS precedents, the regulations that codify them, and the general law governing the

permanent residence of unemancipated minors”); In re Escobar, 24 I. & N. Dec. 231,

234 n.4 (BIA 2007) (“The imputation of a decision to abandon permanent resident status

from a parent to a child is consistent with the above-mentioned longstanding policy that

a child cannot form the intent necessary to establish his or her own domicile.”); Matter

of Zamora, 17 I. & N. Dec. 395, 397 (BIA 1980) (“To the extent that Bauer holds that

an alien can escape the consequences of an ‘entry’ upon returning from such a long

absence simply because he departed under the custody and control of his parents, it is

hereby overruled.”).

However, we have not yet addressed the crucial question regarding which

parent’s intent may be imputed to their unemancipated child when one parent has

abandoned her LPR status but the other has not. In imputing Karimijanaki’s

abandonment of her LPR status to her son, the IJ and Board relied upon Zamora.

Zamora, however, does not answer the question.

As the above-cited cases demonstrate, the imputation rule is based upon the

policy that a child cannot legally form the intent necessary to establish his or her own

domicile. The Restatement (Second) of Conflict of Laws § 22 cmt. d. (1971) provides

that “[a] child’s domicil, in the case of the . . . separation of his parents [where] . . . .there

has been no legal fixing of custody, . . . is that of the parent with whom he lives . . . .”

4

Although Singh held that parents’ fraudulent conduct cannot be imputed to their children, it

explained that “imputing fraudulent conduct – which necessarily includes both knowledge of falsity and

an intent to deceive, . . . is a far cry from imputing knowledge of ineligibility for admission,” or “imputing

the intent to engage in a perfectly lawful act.” Singh, 451 F.3d at 407.

No. 08-4622 Karimijanaki v. Holder Page 15

Cf. 8 U.S.C. § 1431(a)(3) (“A child born outside of the United States automatically

becomes a citizen of the United States when all of the following conditions have been

fulfilled: . . . (3) The child is residing in the United States in the legal and physical

custody of the citizen parent pursuant to a lawful admission for permanent residence.”)

(emphasis added.)

There is no dispute that during the relevant period from 1997 until June 2005,

petitioner Hesameddin Nossoni lived with his mother in Iran and was, at all times, under

her care and physical custody. Even when petitioner Nossoni and his mother returned

to the United States in June 2005, he continued to live with his mother in Michigan

while his father was living in California. There is no evidence in the record that

petitioner Nossoni has ever lived with his father or has even had much contact with him.

The only evidence of Ali Nossoni’s physical connections to his son during the relevant

period are his two approximately month-long visits to Iran over more than seven years

and his attendance at the removability hearing (during which he did not testify). Based

upon this evidence, petitioners’ characterization of both parents’ intent as “equally

compelling” is inaccurate. Under these facts, the decision to impute Karimijanaki’s

abandonment of her LPR status rather than Ali Nossoni’s citizenship to their son was

reasonable. Petitioners’ “family unity” argument is questionable because, although the

immigration laws may share some of the blame for separating this family, it cannot be

ignored that Ms. Karimijanaki and her husband have voluntarily chosen to live apart for

reasons unrelated to immigration.

For these reasons, we hold that, based on this record, the IJ and Board did not err

in imputing Karimijanaki’s abandonment of her LPR status to her unemancipated minor

son, petitioner Hesameddin Nossoni.

C.

Finally, petitioners contend that petitioner Hesameddin Nossoni automatically

acquired United States citizenship when his father was naturalized in April 2006, thereby

mooting the agency’s finding of abandonment and rendering him non-removable. The

IJ ruled that petitioner Nossoni did not acquire citizenship derivatively upon his father’s

No. 08-4622 Karimijanaki v. Holder Page 16

naturalization because he did not, at that time or thereafter, reside in his father’s physical

custody and he had already abandoned his permanent residence. Although petitioners

raised this issue in their appeal to the Board, the Board did not address it.

Generally, where an issue was ruled upon by the IJ and properly appealed to the

Board but not addressed by the Board, the issue is not ripe for our review and should be

remanded for the Board’s consideration. See Matovski v. Gonzales, 492 F.3d 722, 740

(6th Cir. 2007) (citing INS v. Ventura, 537 U.S. 12, 16-17 (2002) (“Generally speaking,

a court of appeals should remand a case to an agency for decision of a matter that

statutes place primarily in agency hands . . . The agency can bring its expertise to bear

upon the matter; it can evaluate the evidence; [and] it can make an initial

determination.”)). However, a remand is not required where such a gesture would be

futile. See Chen v. United States, 471 F.3d 315, 339 (2d Cir. 2006) (“The overarching

test for deeming a remand futile . . . is when the reviewing court can confidently predict

that the agency would reach the same decision absent the errors that were made.”)

(citation and internal quotation marks omitted).

Under 8 U.S.C. § 1431(a)(3), “[a] child born outside of the United States

automatically becomes a citizen of the United States when all of the following conditions

have been fulfilled: . . . (3) The child is residing in the United States in the legal and

physical custody of the citizen parent pursuant to a lawful admission for permanent

residence.” The IJ’s ruling that petitioner Nossoni did not reside in his citizen father’s

physical custody at the time of his naturalization or at any time thereafter is a factual

finding. The Board reviews factual findings for clear error, 8 C.F.R. § 1003.1(d)(3)(i),

and we will not reverse unless a “reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). As already discussed, petitioner

Hesameddin Nossoni lived exclusively with his mother, and there was no evidence that

he ever resided with his father. While petitioners assert that Ali Nossoni always retained

legal custody over his son, they neither attempt to argue nor does the record support a

finding that he resided with him at any relevant time. Therefore, petitioner Nossoni’s

right to derivative citizenship is purely a legal question, and we hold that the IJ did not

No. 08-4622 Karimijanaki v. Holder Page 17

err in ruling that petitioner Nossoni did not acquire citizenship because he did not reside

in his citizen father’s physical custody at the time of his naturalization or at any time

thereafter.5

III.

For these reasons, we deny the petition for review.

5

Our holding renders moot petitioners’ argument that the IJ erred in ruling that petitioner Nossoni

abandoned his LPR status prior to the entry of a final administrative order of removal.