U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5 J 0 7 Leesburg Pike, Suite 2000

Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - BUF
130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: ASHTARYEH, SARA JASMIN

A 075-444-016

Date of this notice: 10/31/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DCinltL ct1/lAJ
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Holmes, David 8.

lucasd
Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Sara Jasmin Ashtaryeh, A075 444 016 (BIA Oct. 31, 2013)

Immigrant & Refugee Appellate Center | www.irac.net

Eric W. Schultz, Esquire
Hiscock & Barclay, LLP
1100 M&T Center
3 Fountain Plaza
Buffalo, NY 14203

Decision of the Board of Immigration Appeals

U.S. Depart�ent �f Justice
Executive Office for Immigration Review
Falls Church, Virginia 20530

File:

A075

444 0 16

-

Date:

Buffalo, NY

OCT s1 ·zo13

In re: SARA JASMIN ASHTARYEH
IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:

Eric

W. Schultz, Esquire

Mark P. Murphy

ON BEHALF OF DHS:

Deputy Chief Counsel

ORDER:
The Board of Immigration Appeals ("Board") has been advised that the Department of
Homeland Security, in the exercise of prosecutorial discretion, has withdrawn its appeal.
8 C.F.R.

See

§ 1003.4. On this record, we decline to accept the Immigration Judge's decision for

review by certification. 8 C.F.R.

§

I 003. 7. Accordingly, the Immigration Judge's decision is the

final administrative decision. Since there is nothing now pending before the Board, the record is
returned to the Immigration Court without further act�on.

FOR THE BOARD

Cite as: Sara Jasmin Ashtaryeh, A075 444 016 (BIA Oct. 31, 2013)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL

UNITED STAtES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STArrES IMMIGRATION COURT
BUFFALO, NEW YORK

In the Matter of:

IN REMOVAL PROCEEDINGS

Respondent

CHARGES:

INA § 212(a)(7)(A)(i)(I)

ON BEHALF OF RESPONDEN T
Eric W. Schultz, Esq.
Hiscock & Barclay, LLP
1100 M&T Center, 3 Fountain Plaza
Buffalo,New York 14203

Documentation Requirements

ON BEHALF OF THE DHS
Michele Henriques, Esq.
Assistant Chief Counsel
130 Delaware A venue, Suite 203
Buffalo, New York 14202

DECISION AND ORDER OF THE IMMIGRATION JUDGE

For the reasons articulated below, the charge of inadmissibility pursuant to INA §
212(a)(7)(A)(i)(I) is NOT SUSTAINED.1 However, pursuant to 8 C.F.R. § 1003.l(c),
this case shall be certified to the Board of Immigration Appeals ("BIA" or "Board") for
its appellate review.
I.

FACTS AND PROCEDURAL HISTORY

Sara Jasmin Ashtaryeh ("Respondent") is a 19-year-old native and citizen of
Canada. She adjusted her status to that of a lawful permanent resident (EIO) on June 9,
1997, at Newark, New Jersey. She applied for admission to the United States at the
Rainbow Bridge in Niagara Falls, New York, on April 1, 2011.
On that date, the Department of Homeland Security ("DHS") issued Respondent a
Notice to Appear ("NTA") (Exh. 1), alleging that she is an immigrant not in possession
of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid
entry document required by the Immigration and Nationality Act ("INA"). The NTA
1

In the alternative, the Court would allow Respondent to withdraw her application for admission, such

request being unopposed by the government.

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ASHTARYEH, Sara Jasmin
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charged Respondent as subject to removal from the United States pursuant to INA
2 l 2(a)(7)(A)(i)(I). 2

§

Respondent appeared before the Buffalo Immigration Court ("Court") for a
master calendar hearing on May 17, 2011.3 Through counsel, Respondent contested the

charge of inadmissibility. Respondent is seeking admission into the United States as a
returning resident alien.

3, 2012, Respondent appeared before the Court for an individual

The government rested on its documentary submissions.

Respondent

presented a legal argument to the Court, relying upon the persuasive authority of

Khoshfahm

v.

Holder, 655 F.3d 1147 (9tn Cir. 2011). Respondent and her mother then

testified on Respondent's behalf. At the conclusion of testimony, the Court reserved its
decision.

II.

DOCUMENTARY EVIDENCE
The following documents were marked as exhibits and included in the record of

proceedings:

Exhibit 1:

Notice to Appear, dated April 1, 2011

Group
Exhibit 2:
2A:

Documents submitted by the DHS on June 29, 2011

Record of Deportable/Inadmissible Alien, dated April 1, 2011

2B:

Memorandum

2C:

Abandonment of Lawful Permanent Resident Status, dated March

Group
Exhibit 3:

of Creation

Residence, dated June 9, 1997

of Record

of Lawful Permanent

11, 2010

Documents relating to Respondent's Enrollment at New York
University

Exhibit 4:

Judd v. Ashtaryeh, No. FD02D01938 (High Ct. of Justice Jul. 11,
2002) (Respondent's parents' divorce decree)

2

According to INA § 212(a)(7)(A){i), "Except as otherwise specifically provided in this Act, any
immigrant at the time of application for admission--{l) who is not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing identification card, or other valid entry document required
by this Act, and a valid unexpired passport, or other suitable travel document, or document of id en t ity and
nationa lity if such document is required under the regulations issued by the Attorney Genera) under section
21 l(a), ... is inadmissible."
3 This matter was originally assigned to U.S. Immigration Judge Michael Rocco, who has since retired.
The matter was reassigned and the Court became familiar with the record prior to proceeding. See 8 C.F.R.
§ 1240. l(b).

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On December

merits hearing.

TESTIMONIAL EVIDENCE

III.

Testimony of Respondent

·

A.

Direct Examination of Respondent
Respondent's Family and their Residences

Respondent testified that she has two sisters, ages 29 and 13. She stated that her
older sister lives in Connecticut and her younger sister lives with their mother in Toronto,
Canada. Respondent testified that her sisters are U.S. citizens. She stated that her
younger sister was born in New York.
Respondent testified that her father's primary residence is in Toronto, but he also
has a residence in Naples, Florida. She stated that her mother lives in Toronto. She
added that her parents are Canadian citizens.
Respondent's Immigration History

Respondent testified that she was a lawful permanent resident of the United States
from 1996 to 2000. She stated that she lived in New York during that time. Respondent
testified that she qualified for permanent residence in the United States because of her
parents' jobs.
Respondent testified that her family moved to the United Kingdom in 2000
because her father's employer transferred his job. She stated that her family lived in the
United Kingdom for two years and then moved to Toronto. She explained that her
parents divorced at that time and they agreed that Respondent would live with her
mother. Respondent testified that she remembered the divorce. She stated that her
mother decided to move to Toronto because she is from there, her family lives there, and
she secured employment there. Respondent testified that her father moved back to New
York at that time. She stated that her father became a lawful permanent resident again
when he moved back to the United States.
Respondent testified that her mother had custody of her. She stated that she never
lived with her father, but she did visit him in New York. She added that she visited her
father two to three times per year.

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Respondent testified that she was born on
1994. She stated that she lived
in New York, New York, where she attends New York University ("NYU"). She added
that she first enrolled in NYU in September 20 1 1. Respondent testified that she is a
sophomore, studying journalism and art history. She anticipates that she will graduate in
May 2015.

Respondent testified that she attended kindergarten in the United States. She
stated that she attended grades four through 12 in Canada. She affirmed that she
graduated from high school in Canada.

Respondent 's Education and Current Intent
Respondent testified that she started thinking about college when she was in high
school. She stated that she wanted to attend college in the United States because there
would be more opportunities for her there. She added that she wanted to be a fashion
journalist. Respondent explained that New York is "the epicenter for the industry [she]
wanted to be in." She stated that she applied to the following schools: Columbia
University, NYU, and Northwestern University. She added that she applied in the
summer of 2010. She stated that she was accepted by NYU and waitlisted at
Northwestern.
Respondent testified that she first started attending NYU in September 2011. She
stated that she did not need to obtain a student visa because she had "a temporary green
card. " She explained that she received her temporary green card by commencing these
proceedings.
Respondent testified that she first learned that she had a problem with her
immigration status in January 2011, when she attempted to cross the U.S.-Canadian
border. According to Respondent, she was talcing a skiing trip with a friend. She stated
that an immigration officer questioned her about her immigration status. Respondent
testified that she did not understand the officer's questions. She stated that she went
home to speak with her parents, and she then discovered that an Abandonment of Lawful
Permanent Resident Status had been executed against her in March 2010.
Respondent testified that she and her mother travelled from Toronto to New York
in March 2010. She stated that they were stopped by the U.S. Customs and Border
Protection ("CBP "). According to Respondent, her mother was asked questions that
resulted in her agreeing to abandon her green card. Respondent testified that she was not
asked any questions at that time and she cannot recall signing any documents. She stated
that she had no intention of abandoning her green card in 20 I 0. She added that she did
not sign any document abandoning her green card in January 2011.
Respondent testified that her mother's abandonment was extended to Respondent,
but they did not intend for that to happen. She stated that she would like to reobtain her

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Respondent testified that, while living with her mother in Toronto, she believed
that she would be allowed to live with her father if the opportunity presented itself. She
explained that she believed this because she had been allowed to travel freely between
her parents' homes.
Respondent testified that she never discussed her living
arrangements with her parents. She stated that the duration of her visits with her father
varied from as short as a weekend to as long as a few weeks.


'

'

·

green card. She added that her current plans are to graduate from NYU and to continue
to live and work in New York.

B.

Cross Examination of Respondent

Respondent affirmed that she was with her mother when her mother completed an
Abandonment of Lawful Permanent Resident Status. She stated that she did not
understand what was happening at that time. Respondent testified that she was present in
the room, but her mother did not explain to her what was happening. She stated that she
was 15 years old at that time.
Respondent testified that she used her Canadian passport when attempting to
cross the U.S-Canadian border in January 2011. She stated that she did not know that she
should have presented her green card. She affirmed that she used her Canadian passport
whenever she travelled into the United States.
C.

Re-Direct Examination of Respondent

Respondent testified that she did not know that lawful permanent residents are
required to use their green cards to enter the United States. She stated that her mother
was questioned in March 20 I 0, but she was not.
D.

Questioning by the U.S. Immigration Judge4

Respondent testified that she was not questioned in March 2010. She stated that
the immigration officers spoke with her mother and not her. She affirmed that she signed
an Abandonment of Lawful Permanent Resident Status; however, she stated that she did
not recall signing the document until her attorney presented it to her.
E.

Continuation of Re-Direct Examination of Respondent

Respondent testified that the purpose of her trip in March 20 I 0 was to look at
universities in New York and Evanston, Illinois.
4

The immigration judge is permitted by statute to develop the record.

See INA § 240(b)(1) ("The

immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine
the alien and any witnesses.").

The U.S. Court of Appeals for the Second Circuit has noted that the

immigration judge "is not merely the fact finder and adjudicator but also has an obligation to establish the
record." See Yangv. McE/roy, 277 F.3d 158, 162 (2d Cir. 2002).

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Respondent testified that she had no power to choose her own residence between
2000 and September 20 11. She explained that her parents had decided during their
divorce that Respondent would live with her mother. She affirmed that it was her
parents' decision that she should live in Toronto. Respondent testified that she first had
an opportunity to select her own residence when she went to university. She stated that it
was her decision to attend NYU. Respondent testified that she was 16 years old when
she applied to NYU, and she was 17 years old when she started attending the school.

F.

Questioning by the U.S. Immigration Judge

Respondent denied that she read the Abandonment of Lawful Permanent Resident
Status before she signed it. She added that her mother did not explain it to her.
Testimony of

A.

("Mother")

Direct Examination of Mother

Mother testified that she is a Canadian citizen and the mother of Respondent. She
stated that she lived in the United States for a time starting in 1996. She affirmed that
Respondent was alive and living with her at that time. Mother testified that they were
resident aliens. She stated that they lived in Fort Lee and then Manhattan. Mother
testified that she obtained her immigration status through her ex-husband, who is
Respondent's father.
Mother testified that she stopped living in the United States in May 2002 (sic),
when her family moved to the United Kingdom. She stated that they moved to the
United Kingdom because her ex-husband was transferred there. Mother testified that she
lived in the United Kingdom for two years before moving back to Toronto. She
explained that she moved to Toronto because she was divorcing her husband and her
parents lived in Toronto. She stated that she and her ex-husband divorced on August 13,
2002. She added that her divorce was by agreement.
Mother 's Intent regarding Respondent
Mother testified that she and her ex-husband decided that Respondent would
reside with Mother after their divorce. She affirmed that her divorce took place in the
United Kingdom. She stated that she and Respondent's father did not discuss
Respondent's immigration status at that time. According to Mother, "We assumed that
she would live primarily with me, but maintain obviously a good relationship with her
father [in the United States]." Mother testified that Respondent was 8 years old when
they moved to Toronto. She stated that she did not take any actions to relinquish their
permanent resident statuses.
Mother testified that she had difficulties entering the United States in March
20 10, when she and Respondent were travelling to look at universities. She stated that
they were attempting to enter through the Toronto Pearson International Airport. She
added that they were attempting to travel to New York City. Mother testified that they
were questioned by CBP officers and taken into "the immigration room." She stated that
they then waited for a while without knowing why they were there. She added that they
were then questioned by an immigration officer. She stated that the officer was a man.
According to Mother, the officer questioned her and not Respondent. Mother affirmed
that she was asked to sign some documents. She stated, "It was all very confusing and I
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Mother 's Nationality and Immigration History


\'�

was really anxious about the travel, but yes, I recall signing for me. " Mother testified
that it was her understanding that she was signing a document to indicate that she did not
intend on maintaining a green card. She stated that she does not recall being asked to
sign a similar document relating to Respondent's intentions.
Mother identified her signature on Respondent's Abandonment of Lawful
Permanent Resident Status. She stated that she does not remember signing the document.
She added that she does not remember being asked questions about Respondent's
intentions.

B.

Cross Examination of Mother
Mother 's Immigration History

Mother testified that she intended on returning to the United States when she
moved to the United Kingdom. She stated that her intentions changed when her marriage
changed. She affirmed that she did not intend on resuming her residency in the United
States when she moved to Toronto in 2002.
Mother affirmed that she applied for (and was granted) advanced permission to
return to the United States when her family moved to the United Kingdom. She stated,
however, that she never used that permission.
Mother testified that she previously believed that she had returned her physical
green card to her ex-husband's lawyers. She stated that she visited the United States
several times per year after moving to Toronto. She added that she never presented her
green card on any of those trips. She stated that she never presented Respondent's green
card because they were travelling on Canadian passports. According to Mother, they
were never asked for their green cards.
Mother's Connections to the United States
Mother testified that she has not maintained bank accounts in the United States
since 2000. She stated that she has no property in the United States and she has not paid
taxes in the United States since 2000.
Mother testified that, to the best of her recollection, she travelled directly from the
United Kingdom to Canada in 2002. She stated that it was possible that she entered the
United States on April 5, 2002; however, she added that it was not then her intent to
resume her lawful permanent residency in the United States.

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Mother testified that she has not had any difficulties entering the United States
since the incident in March 20 I 0.

IV.

LEGAL STANDARD

A.

Abandonment of Status and Returning Residents

Respondent is regarded as seeking admission into the United States because she
was absent from the United States for a continuous period of more than 180 days. INA §
101(a)(l 3)(C).

Matadin v. Mukasey, 546 F.3d 85, 90 (2d Cir. 2008). Respondent is not seeking
readmission after a temporary absence of less than 1 year, so the exception found in 8
C.F. R. § 2 l l (a)(2) does not apply to her application. Therefore, she may only be
admitted without entry documents if the Court finds that she qualifies as a "returning
resident." INA § § 21 l (b), 10 l (a)(27)(A).
A returning resident is "a lawful permanent resident returning from a 'temporary
visit abroad."' Ahmed v. Ashcroft, 286 F. 3d 6 11 (quoting INA § 10 1(a)(27)(A)). The
Second Circuit has held that a "temporary visit abroad" requires an intention "to return
within a period relatively short, fixed by some early event. " Ahmed, 286 F.3d at 6 13
(quoting United States ex rel. Lesto v. Day, 21F.2d 307, 308-09 (2d Cir. 1927)). "When
the length of the visit is not fixed by some early event but instead relies upon an event
with a reasonable possibility of occurring within a short period of time, what constitutes a
temporary visit 'cannot be defined in terms of elapsed time alone."' Id. (quoting United
States ex rel. Polymeris v. Trudell, 49 F .2d 730, 732 (2d Cir. 193 1)) . In such a case, the
returning resident's intent will control; however, "the intention of the visitor must still be
'to return within a period relatively short, fixed by some early event."' Id.

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"Generally, in order to gain admission into the United
States, an immigrant must present a valid, unexpired
immigrant visa as well as a valid, unexpired passport or
other travel document." Ahmed v. Ashcroft, 286 F.3d 61 1,
6 12 (2d Cir. 2002) (per curiam); see [INA § 2 11(a)]. "If a
person fails to produce such documents, [INA §
2 12(a)(7)(A)(i)(I)] requires that he or she be excluded." Id.
There are some exceptions to this rule for lawful permanent
residents returning to the United States. . . . [A] lawful
permanent resident "seeking readmission after a temporary
absence of less than 1 year, " may present a "valid,
unexpired Form I-551, Permanent Resident Card" in lieu of
a visa. 8 C.F.R. § 2 11. l (a)(2). If a lawful permanent
resident has remained abroad for a longer period, however,
[he or she] may still be admitted without entry documents if
[he or she] qualifies as a returning resident, i.e., ''a lawful
permanent resident returning from a temporary visit
abroad." [INA § 2 1 l (b)]; [INA § 10l(a)(27)(A)].

Where an alien has a colorable claim to returning resident status, the government
bears the burden of proving abandonment of lawful status "by clear, unequivocal and
convincing evidence. " Matadin, 546 F.3d at 91. This is consistent with the general
principle that the government faces a heavy burden when it seeks to strip an alien of
permanent resident status already acquired. See Matadin, 546 F.3d at 91.
B.

Imputation of Intent

The Court finds this to be a generally good principle in that it protects and
promotes family unity. In its decision below, the Court does not in any way wish to
impugn the rights of non-citizen parents or to strip them of their inherent control over the
wellbeing and welfare of their children. However, the case law cited by Respondent has
given the Court occasion to pause. It appears that an overly rigid application of the
imputation doctrine could-in some limited circumstances-result in decisions that do
more harm than good. 5
In Khoshfahm, the Ninth Circuit made two significant observations. First, the
circuit court observed that the "imputation of abandonment of LPR status from parent to
child may not be appropriate in every circumstance. " Khoshfahm, 655 F 3d at 1153 n. 2.
And second, the circuit court held that, while the intent of a child's parents "is imputed to
the child (over whom the. parents have custody and control) during the period of the
child's unemancipation[, a]t the point at which the child becomes an adult . . . he may
legally demonstrate his intent separate from that of his parents." Id. at 1153.
.

Buffalo, New York is within the jurisdiction of the U.S. Court of Appeals for the
Second Circuit, and thus the Court is not bound by decisions of the Ninth Circuit.
5

In a unanimous decision, the U.S. Supreme Court recently recognized that the rules of i mputation should

not be applied blindly to prioritize family unity over all other considerations in every situation. See Holder

v.

Martinez Gutierrez, 132 S. Ct. 2011, 2019 (2012) (stating, "We cannot read a silent statute as requiring

(not merely al1owing) imputation just because that rule would be family-friendly."). The BIA 's policy of
imputing a parent's abandonment (or non-abandonment) to his or her child is longstanding, but it is not
explicitly required by INA§ 21 l(b) or any other provision of the INA. Id. at 2020.

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"Under BIA precedent, if a petitioner's parent abandons his or her LPR status
while the petitioner is in his or her custody and control, then the parental abandonment
must be imputed to the child." Khoshfahm, 655 F.3d at 1152 (citing Matter of Huang, 19
l&N Dec. 749, 750 n.1 (BIA 1988); Matter of Zamora, 17 l&N Dec. 395, 396 (BIA
1980); Matter of Winkens, 15 I&N Dec. 451, 452 (BIA 1975)). These decisions rest on
the sound premise that a minor child cannot legally possess an intent to remain in the
United States distinct from his or her parents' intent. SeeJ e.g. , Matter of Bauer, 10 l&N
Dec. 304, (BIA 1963) (noting that a minor respondent "was under a legal compulsion to
follow and accompany his parents "); Zamora, 17 l&N Dec. at 397 ("[T]o the extent that
Matter of Bauer, supra, can be cited for the general proposition that, because a minor
child is compelled to accompany his parents if they depart from the United States, the
intent of the parents with regard to the departure ... is imputed to the accompanying
child, Bauer still stands.").

Nonetheless, the Court finds the Ninth Circuit's reasoning in Khoshfahm to be
exceedingly persuasive on the particular issues presented by this matter.
Firstly, it is entirely possible for parents to possess separate intentions regarding
their own immigration status and the statuses of their children. The Ninth Circuit
provided the following plausible example:

Khoshfahm, 655 F.3d at 1153 n.2. The Court will not speculate as to all of the situations
in which imputation would become unreasonable, but it is not difficult to imagine other
such scenarios. For example, imagine a pair of LPR parents who decide to formally
abandon their statuses through the filing of an Abandonment of Lawful Permanent
Resident Status. If they so desire, should they be precluded from stating in their I -407s
that they explicitly do not wish for their children to abandon their LPR statuses as well?
The parent unquestionably has the right to dictate the status of the child-but shouldn't
that right include the right to elect for the child to maintain a different status than the
parent? A rule that holds that the parents' intent vis-a-vis their own statuses must always
be imputed to the children would actually curtail the rights and discretion of the parents,
not protect them.
On the second issue, the Court again agrees with the Ninth Circuit: a child whose
LPR status has not been abandoned (through imputation) may, when he or she becomes
an adult, demonstrate a legal intent that is separate from that of his or her parents.
Khoshfahm, 655 F.3d at 1153. A rule that a child's legal disability ends at the age of
maturity-while perhaps not clearly articulated in previous immigration decisions-is
hardly anomalous in American jurisprudence. See, e.g., 42 Am. Jur. 2d Infants § 80
("The infant's execution of another deed to a third person after reaching maturity is
generally a sufficient disaffirmance of a deed to the same property executed prior to
majority, at least when the second deed is recorded and is clearly inconsistent with the
first deed."); 42 Am Jur. 2d Infants § l 04 ("Under the infancy doctrine, a minor may
choose to ratify contractual obligations entered into during his or her minority. This
ratification may be effected upon the minor reaching the age of maturity or by failing to
disaffirm within a reasonable time after reaching majority."); 59 Am.Jur. 2d Parent and
Child§ 1 27 ("Since emancipation ends the parent's right to his or her child's services, it
also terminates his or her right to recover for the loss of those services."); and 42 Am
Jur. 2d Infants§ 145 ('4Generally, a minor child does not have a cause of action for his or
her medical expenses because the parents possess the exclusive right to recover for a
minor's premajority medical expenses... . However, exceptions exist to this general rule
.

.

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Assume .. . that LPR parents leave the country, but their
LPR child stays in the United States to attend school or live
with a relative. The parents' length of stay abroad, and
their lack of continuous intent to return to the United
States, could result in a finding that they abandoned their
LPR status. [But], it may be unreasonable to impute the
parents' abandonment to the child since the child never left
the United States.

... and [the child] may recover these expenses when - - . . . the child is legally responsible
for their payment, such as by reason of emancipation, or the death or incompetency of his
or her parents. "). An alien whose LPR status is not abandoned prior to his or her
eighteenth birthday should be able to establish his or her own intent to abandon (or not
.
abandon) lawful status after reaching maturity. 6

V.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Court has considered the entire record carefully. All evidence and testimony
has been considered, even if not specifically addressed in the decision below.
A.

Whether the intent of respondent's parents (prior to Respondent's
eighteenth birthday) should be imputed to Respondent

Respondent's parents were married in
Canada, on
1993.
(Exh. 4 at 12). Respondent was accorded the status of a lawful permanent resident,
pursuant to INA § 245, on June 9, 1997. (Exh. 2B). Respondents' parents divorced on
July 1, 2002. (Exh. 4 at 12). (Respondent was then 8 years old.)
Respondent's mother abandoned her lawful permanent resident status prior to
March 1 1, 20 10. (Exh. 2A at 2); see also Testimony of Mother, supra at 6 -7. On that
date, Respondent travelled to the U.S.-Canadian border with her mother and an
Abandonment of Lawful Permanent Resident Status ("Form I-407 ") was executed on her
behalf. (Exh. 2C) (stating that Respondent abandoned her lawful permanent resident
status on May 15, 2000, when she "moved with [her] parents "). The government alleges
that Respondent's father knowingly and voluntarily abandoned his lawful permanent
resident status in or before December 2000. See (Exh. 2A at 3).
The allegation that Respondent abandoned her LPR status on May 15, 2000 is
contradicted by the evidence in the record. Respondent's parents' divorce decree-which
was executed in 2002-contained the following material provision: "Until (Respondent]
has attained the age of 18 or obtained US citizenship whichever is the earlier,
[Respondent's father] will pay for the costs of [Respondent's mother] and the children for
6

While not forming the basis of the Court's decision, the Court notes that a contrary rule would be difficult
to enforce in light of Khoshfahm. As a Canadian citizen, Respondent is able to enter the United States with
relative ease. See U.S. Customs and Border Protection, Visiting the U.S. - Documents required for
Canadian Citizens (Jun. 4, 2012), https://help.cbp.gov/app/answers/detail/a_id/619/-/visiting-the-u.s.--­

documents-required-for-canadian-citizens-%2F-residents-%2F.

The Court could hold that Respondent

remains unable to demonstrate an intent independent of her parents; however, once Respondent is inside
the United States, there is nothing to prevent her from travelling domestically into the Ninth Circuit to

apply for admission to the United States as a returning resident. See Khoshfahm, 655 F.3d at 1153.

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Immigrant & Refugee Appellate Center | www.irac.net

For the foregoing reasons, the Court finds that it must resolve two issues: ( 1)
Whether the intent of Respondent's parents (during the period of time before Respondent
turned 18) should be imputed to her; and (2) Whether Respondent, after reaching the age
of 18, intended to abandon her lawful permanent resident status. See Khoshfahm, 655
F.3d at 1153.

flights (travelling economy class) from Canada to the US once per annum to enable
[Respondent] to maintain her US residency." (Exh. 4 at 15- 16). Respondent continued
to visit her father in the United States several times per year, under the belief that she had
not abandoned her lawful permanent resident status. See Testimony of Respondent,
supra at 3-4.

Regarding Respondent's father's alleged abandonment of his status, the
government has failed to carry its burden of proving such abandonment by clear,
unequivocal, and convincing evidence. Additionally, there is nothing in the record to
suggest that Respondent's father's abandonment (assuming that he did abandon his
status) was intended to impact Respondent's status in any way. Respondent's father was
a non-custodial parent of Respondent. Despite his alleged abandonment, he maintained a
residence in the United States. See Testimony of Respondent, supra at 3. The Court sees
no reason to presume that Respondent's father's actions were intended to nullify the
provisions of his divorce decree, which expressly preserved an intention for Respondent
to retain her LPR status. (Exh. 4 at 15-16).
In sum-and limited to these facts-the Court finds that it would be unreasonable
to impute the intent of Respondent's parents regarding their own statuses to Respondent.
The best evidence in the record (the parents' divorce decree) indicates that Respondent's
parents intended for Respondent to retain her status at least until she reached the age of
maturity. Id. The government's evidence challenges that conclusion, but it does not
refute it. Therefore, under the doctrine of imputation, the Court finds that Respondent
did not abandon her lawful permanent residence prior to reaching the age of 18.
B.

Whether Respondent intended to abandon her LPR status after she
became an adult

It is clear that Respondent did not abandon her status as an LPR after she became
an adult. Respondent turned 18 on
201 2. She effectively commenced these
proceedings against herself prior to her eighteenth birthday. See (Exh. 1). Government
counsel conceded during trial that Respondent has always possessed the intent to reside
in the United States and attend New York University. Respondent attended NYU as a
full-time student in fall 2011, spring 201 2, and fall 201 2. (Exh. 3). Respondent is
currently studying at NYU Paris. See Respondent's Motion to Waive Appearance (Jan.
14, 2013).
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The Court further finds that Respondent's mother's abandonment of her own LPR
status should not be imputed to Respondent. There is insufficient evidence in the record
to clearly establish that Mother intended for her abandonment to be imputed to
Respondent-especially in light of the fact that such an intention would have
contradicted the terms of her divorce decree. (Exh.4 at 15-16). Mother testified credibly
that she did not realize in March 2010 that she was being asked to abandon Respondent's
LPR status as well as her own. See Testimony of Mother, supra at 6-7. Furthermore,
there is no evidence that Respondent's father was given any opportunity to be heard on
the issue of Respondent's abandonment at that time.

VI.

CONCLUSION

The Court finds that the government has not carried its burden of proving that
Respondent (personally or through the imputation of her parents' intent) abandoned her
lawful permanent resident status. The Court therefore holds that Resp�mdent is a
returning resident who at all times possessed the requisite intent to return to the United
States once she reached the age of maturity. The charge of inadmissibility is not
sustained.

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Immigrant & Refugee Appellate Center | www.irac.net

However, this case presented several issues of first impression. The Court is not
aware of any BIA decisions-rendered after Khoshfahm-to address these specific
issues. Accordingly, the Court will certify its decision to the Board to allow that body an
opportunity to be heard on the following questions of law: (1) Whether a parent's
intention regarding his or her own status must always be imputed to the child regarding
his or her status; and (2) Whether the doctrine of imputation should terminate on the
child's eighteenth birthday. The following order shall be entered:

ORDER

that the charge of inadmissibility pursuant to INA §
212(a)(7)(A)(i)(I) is NOT SUSTAINED; and
IT IS ORDERED

THE PARTIES ARE NOTIFIED that this matter shall be certified to the Board
oflmmigration Appeals pursuant to 8 C.F.R. § 1003. l(c);

THE PARTIES ARE ADVISED that the certification of this case "shall not
relieve the party affected from compliance with the provisions of [8 C.F.R. § I 003.3] in
the event that he or she is entitled and desires to appeal [the Court's] initial decision, nor
shall it serve to extend the time specified in the applicable parts of [Chapter V of Title 8
of the Code of Federal Regulations] for the taking of an appeal. " 8 C.F.R. § 1003.3(d).

{

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Date

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Philip J. Montante,
U.S. Immigration Judge

Immigrant & Refugee Appellate Center | www.irac.net

THE PARTIES ARE INFORMED that "they have a right to make
representations before the Board, including the making of a request for oral argument and
the submission of a brief. If either party desires to submit a brief, it shall be submitted to
[the Court] for transmittal to the Board within [30 days of the mailing of this decision].
The case shall be certified and f01warded to the Board by [the Court] upon receipt of the
brief, or upon the expiration of the time within which the brief may be submitted, or upon
receipt of a written waiver of the right to submit a brief. The Board in its discretion may
elect to accept for review or not accept for review [this] case. If the Board declines to
accept [this case] for review, the underlying decision shall become final on the date the
Board decline[s] to accept the case." 8 C.F.R. § § 1003.7, 1003.3(c). All briefs, filings,
and motions filed in conjunction with this order shall include proof of service on the
opposing party and comply with all other applicable regulations; and

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