U.S.

Department of Justice

_)

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - BAL

31 Hopkins Plaza, Room 1600
Baltimore, MD 21201

Name: ATSEYINKU, IRENE 0

A 058-536-724
Date of this notice: 10/25/2016

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

DorutL Cwvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Pauley, Roger
Wendtland, Linda S.

Userteam: Docket

,.

For more unpublished BIA decisions, visit

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Pignone, Marco
Getson & Schatz, P.C.
230 S. Broad Street, Suite 1001
Philadelphia, PA 19102

U.S. Departmentof Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A058 536 724 - Baltimore, MD

Date:

OCT 2 5 2016

In re: IRENE O ATSEYINKU

APPEAL
ON BEHALF OF RESPONDENT: Marco Pignone, III, Esquire
CHARGE:
Notice: Sec.

212(a)(7)(A)(i)(I), l&N Act [8 U.S.C. l182(a)(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document

APPLICATION: Admission as a returning lawful permanent resident

This case was last before us on January 21, 2015, when we remanded the record to the
Immigration Judge for further fact-finding because the record as it was then constituted was not
sufficient for us to conduct a review of the respondent's March 12, 2013, appeal. 1 See
Matter of A-P-, 22 I&N Dec. 468 (BIA 1999). Thereafter, on April 21, 2015, the
Immigration Judge issued a written decision.
The respondent appeals from the
Immigration Judge's April 21, 2015, decision. The Department of Homeland Security ("DHS")
has not filed an appellate brief. The respondent's appeal will be dismissed.
We review findings of fact, including credibility findings, under the "clearly erroneous"
standard. See 8 C.F.R. I003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260
(BIA 2007); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). We review questions of law,
discretion, or judgment, and all other issues de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
At issue in this case is whether the respondent abandoned her lawful permanent resident
status. Where an alien has a colorable claim of lawful permanent resident status, the burden is
on the DHS to demonstrate by clear, unequivocal, and convincing evidence that she abandoned
that status. See Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988); see also
Ward v. Holder, 733 F.3d 601, 604 (6th Cir. 2013); Moin v. Ashcroft, 335 F.3d 415, 419
(5th Cir. 2003).2 One way of satisfying this burden is by showing that an alien's trip abroad was
1

This Board also remanded the record on November 14, 2012, for the Immigration Judge to
make additional findings of fact.
2

We need not address the question whether an exception to the foregoing rule may apply when
a returning lawful permanent resident arguably comes within a provision under which she will be
regarded as seeking an "admission" into the United States. See section 101(a)(I3)(C) of the
Immigration and Nationality Act, 8 U.S.C. l l0l(a)(I3)(C); Matter ofRivens, 25 I&N Dec. 623,
(continued ...)
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IN REMOVAL PROCEEDINGS

A058 536 724

more than a "temporary visit abroad." See section 101(a)(27)(A) of the Immigration and
Nationality Act, 8 U.S.C. 1101(a)(27)(A). The term "temporary" is not subject to an inflexible
definition and varies in application depending upon the facts and circumstances of each case.
See Matter ofHuang, supra.

The intention of the alien, when it can be ascertained, will control. See Matter of Kane,
15 l&N Dec. 258, 262 (BIA 1975). Some of the factors that can be used to determine whether an
alien harbored a continuous, uninterrupted intention to return in addition to the alien's testimony
include the alien's family ties, property holdings, and business affiliations within the
United States; the duration of the alien's residence in the United States; and the alien's family,
property and business ties in the foreign country. See Singh v. Reno, 113 F.3d 1512, 1514-15
(9th Cir. 1997); see also Aleem v. Perryman, 114 F.3d 672, 677 (7th Cir. 1997). The alien's
desire to retain her status as a permanent resident, without more, is insufficient; the actions must
support the professed intent. See Singh v. Reno, supra, at 1515 (citing Matter of Huang, supra,
at 753).
The determination of whether an alien has abandoned her lawful permanent residence is "an
intrinsically fact-specific question."
See Khodagholian v. Ashcroft, supra, at 1006.
Consequently, we will only reverse the Immigration Judge's finding if it is based on factual
findings that are clearly erroneous. See 8 C.F.R. 1003.l(d)(3).
Applying this legal framework to the respondent's case, we uphold the Immigration Judge's
determination that the respondent has abandoned her lawful permanent resident status
(1.J. Apr. 21, 2015 at 5, 9). The respondent's actions do not support her contention that she
intended to retain her status as a permanent resident. See Singh v. Reno, supra. The
Immigration Judge found the following facts, which we do not find to be clearly erroneous.
8 C.F.R. 1003.l(d)(3)(i). The respondent was only present in the United States for 70 days out
of the 1,066 days between her initial admission as a lawful permanent resident on October 4,
2006, and her last encounter at a port of entry on September 3, 2009 (I.J. Apr. 21, 2015 at 2, 5;
Tr. at 27; Exh. 2(A)). Two of the respondent's trips to Nigeria lasted for almost a year
(I.J. Feb. 14, 2013 at 5-6; Exh. 2(A)). Further, the respondent always purchased roundtrip tickets
(... continued)
626 (BIA 2011). The Immigration Judge in this instance determined that the OHS bore the
burden of proving by clear, unequivocal, and convincing evidence that the respondent had
abandoned her lawful permanent resident status (I.J. Apr. 21, 2015 at 4), and the OHS has not
challenged that determination on appeal.
2
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A permanent resident returns from a temporary visit abroad when (1) her visit is for a
relatively short period, fixed by some early event, or (2) her visit will terminate upon the
occurrence of an event having a reasonable possibility of occurring within a relatively short
period of time. See Khodagholian v. Ashcroft, 335 F.3d 1003, 1006-07 (9th Cir. 2003).
However, where the length of the visit is contingent upon the occurrence of an event and is not
fixed in time, and the event does not occur within a relatively short period of time, the visit will
only be considered a ''temporary visit abroad" if the alien has a continuous, uninterrupted
intention to return to the United States during the entirety of her visit. Id.

A058 536 724

from the United States back to Nigeria with specific return dates (I.J. Feb. 10, 2011 at 4-5;
I.J. Feb. 14, 2013 at 6; Tr. at 46-49; Exh. 2(A)). The respondent never had a fixed address in the
United States before she was placed in proceedings following the issuance of her Notice to
Appear ("NTA'') on September 3, 2009 (I.J. Feb. 10, 2011 at 4; Tr. at 30-31, 36).

The respondent did not secure employment until after her NTA was issued in 2009
(I.J. Feb. 14, 2013 at 8; Tr. at 29-33, 51). Before then, the respondent testified that she had been
searching for employment (I.J. Feb. 10, 2011 at 5; I.J. Feb. 14, 2013 at 8; Apr. 21, 2015 at 5-6;
Tr. at 30, 43, 45-46). In an effort to support that claim, the respondent submitted a copy of an
email from Bankers Life and Casualty dated December 29, 2006, showing that the company
received her resume and invited her to submit an application (I.J. Apr. 21, 2015 at 5-6;
Exh. 3(F) at 29). The respondent also submitted a copy of an email dated October 14, 2006,
from Ameriprise Financial Advisors similarly indicating that the company had received her
resume and was interested in setting up an interview with her (I.J. Apr. 21, 2015 at 6; Exh. 3(F)
at 26). However, as the Immigration Judge noted, this evidence refers to limited, preliminary
employment prospects that were not pursued and does not reflect that the respondent was
seriously engaged in an active search for employment in the United States before being placed in
proceedings (I.J. Apr. 21, 2015 at 5-6).3
The respondent's minor daughter, whom she alleges she was trying to bring to the
United States to live there permanently but was delayed due to a custody dispute, also lacked a
fixed address in the United States and had never attended school in the United States before the
issuance of the respondent's NTA (I.J. Feb. 14, 2013 at 6; I.J. Apr. 21, 2015 at 8; Tr. at 47).
Further, when the respondent arrived at the airport with her daughter on September 3, 2009, she
signed a sworn statement stating that she intended to stay for only 11 days and then planned to
take her daughter back to Nigeria so that she could resume school there (I.J. Feb. 14, 2013 at 6;
I.J. Apr. 21, 2015 at 8; Tr. 37, 46-47; Exh. 2(B) at 6). Additionally, although the respondent
testified that she had to return to Nigeria to care for her mother, who had fallen ill in 2005, the
evidence of record does not support this claim, including an affidavit from the respondent's
3

The respondent correctly notes that the Immigration Judge failed to consider an email
exchange between the respondent and Ameriprise Financial Advisors dated
October 18, 2006 (Respondent's Brief at 10, 12; Exh. 3(F) at 28). However, we find this error to
be harmless because the evidence of record in its totality supports the Immigration Judge's
finding that the respondent abandoned her lawful permanent resident status.
See
Hana v. Gonzales, 400 F.3d 472, 476 (6th Cir. 2005) (observing that in determining whether an
alien has abandoned his or her lawful permanent resident status, the totality of the alien's
circumstances must be taken into account).
3
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Although the respondent submitted evidence that she purchased an automobile in the
United States, the sale did not occur until after she was placed in proceedings (I.J. Feb. 14, 2013
at 7-8; Exh. 3(H) at 45-48). The respondent also submitted her 2007 and 2008 state and federal
income tax records, but they indicate that she did not have any taxable income for those years
(I.J. Feb. 14, 2013 at 8; Exh. 3(G)). Credit card account statements that the respondent submitted
show mostly the absence of a balance with one exception in 2009, after her NTA was issued (I.J.
Feb. 14, 2013 at 9; Exh. 3(J)).

A058 536 724

mother that does not mention that she suffered from an illness or that the respondent provided
care to her at any time (U. Feb. 14,2013 at 7; Tr. at 30,43,45-46; Exh. 3(C)).

Based on the foregoing,we find that the Immigration Judge properly considered the totality
of the circumstances in determining that the OHS established by clear, unequivocal, and
convincing evidence that the respondent abandoned her lawful permanent resident status (I.J.
Apr. 21, 2015 at 5, 9). See Hana v. Gonzales, 400 F.3d 472, 476 (6th Cir. 2005). Thus, the
respondent lacked a valid immigrant visa or entry document when she attempted to enter the
United States as a lawful permanent resident on September 3, 2009, and the Immigration Judge
properly found the respondent removable as charged (I.J. Apr. 21,2015).
On appeal, the respondent maintains that the Immigration Judge erroneously shifted the
burden to her to demonstrate her intent to retain her residence in the United States (Respondent's
Brief at 4-9). We are not persuaded that this occurred. The Immigration Judge stated throughout
each of his decisions that the burden of proof in this case rested with the OHS (1.J. Feb. 10,2011
at 2, 5; I.J. Feb. 14,2013 at 4-5; I.J. Apr. 21, 2015 at 3-5,9). Moreover, the Immigration Judge
did not require the respondent to produce evidence; rather,the Immigration Judge considered the
entire evidence of record and noted the lack of objective evidence pertaining to certain issues,
such as the respondent's claim that she was involved in a contentious custody dispute, which
impeded her ability to bring her daughter to the United States to live permanently, and the
absence of evidence regarding her mother's illness (I.J. Feb. 14, 2013 at 6-7; I.J. Apr. 21,2015 at
6-8).5

We note here that the Immigration Judge did not explicitly make an adverse credibility
determination in the respondent's case.
5

The respondent noted in her brief that the Immigration Judge stated in his decision that she had
not submitted any "independent evidence" in relation to the custody dispute, and that he cited to
Gandziami-Mickhou v. Gonzales, 445 F. 3d 351 (4th Cir. 2006), a case involving an asylum
applicant who bore the burden of proving eligibility for the benefits sought (Respondent's Brief
at 8; I.J. Apr. 21, 2015 at 7). However, we find this to be harmless error on the part of the
Immigration Judge for the same reason discussed supra,at note 3.
4
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The above findings made by the Immigration Judge are not clearly erroneous. See 8 C.F .R.
I003.l(d)(3)(i). While testifying, the respondent offered explanations for discrepancies
between her professed intention to retain lawful permanent resident status in the United States
and her actions, which appeared to indicate otherwise.4 For example, she asserted before the
Immigration Judge that she declined to purchase one-way or "open" plane tickets because it was
more expensive (1.J. Feb. 10, 2011 at 5; Tr. at 46-49). She also asserted before the
Immigration Judge that her statements at the airport regarding her daughter were made under the
stress of having been detained at the airport for a lengthy period of time (I.J. Apr. 21,2015 at 8;
Tr. at 37; Exh. 2(B)). However, an Immigration Judge is not required to accept a respondent's
account where other plausible views of the evidence are supported by the record. See
Matter ofD-R-, 25 I&N Dec. 445,454 (BIA 2011).

A058 536 724

The respondent also asserts on appeal that the Immigration Judge's finding regarding her
lack of intent to maintain lawful permanent residence in the United States was improper because
the Immigration Judge did not make an adverse credibility finding (Respondent's Brief at 9). As
aforementioned, the Immigration Judge must take into account the totality of the alien's
circumstances in determining whether she has abandoned her lawful permanent resident status,
including her testimony asserting that she intended to remain permanently in the United States,
the location of her family, property, and employment, and the duration of her overseas trips. See
Hana v. Gonzales, supra, at 476. The Immigration Judge therefore was not required to reject the
respondent's testimony regarding her desire to maintain her lawful permanent resident status
before determining that she abandoned it.
The respondent asserts that the Immigration Judge cut off her testimony during proceedings
and requests a remand to more fully develop her testimony (Respondent's Brief at 15-18).
However, the respondent has not identified what information she was precluded from presenting.
The record reflects that the respondent was given a full and fair opportunity to be represented by
counsel and to present testimony and other evidence in support of her arguments. See Rusu v.
INS, 296 F.3d 316, 321-22 (4th Cir. 2002) ("Nevertheless, due process requires, at a minimum,
that the INS adopt procedures to ensure that . . . petitioners are accorded an opportunity to be
heard at a meaningful time and in a meaningful manner, i.e., that they receive a full and fair
hearing on their claims.").
Accordingly, the following order will be entered.
ORDER: The appeal is dismissed.

5
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The respondent additionally argues on appeal that the Immigration Judge erred in affording
less weight to two affidavits she submitted in her efforts to corroborate her testimony that she
was unable to bring her daughter to live in the United States permanently due to a custody
dispute with her daughter's father (Respondent's Brief at 13-15; I.J. Apr. 21, 2015 at 7;
Exhs. 3(C)-(D)). The respondent also argues that the Immigration Judge erred by disregarding
the respondent's testimony explaining why she was unable to present other corroborative
evidence pertaining to the custody battle between her and her daughter's father
(Respondent's Brief at 14-15; Tr. at 30). However, we conclude that the Immigration Judge
reasonably gave minimal weight to the evidence that the respondent submitted (I.J. Apr. 21, 2015
at 7). An Immigration Judge has broad discretion to accept and assign evidentiary weight to
evidence, may make reasonable inferences from direct and circumstantial evidence in the record
as a whole, and does not have to accept a respondent's explanations regarding the evidence or
lack thereof. See Matter ofD-R-, supra, at 454. We note that the affidavits that the respondent
submitted were from a friend and relative who were not available for cross-examination. See
Matter ofH-L-H & z_:...y_z-, 25 l&N Dec. 209, 215 (BIA 2010) (giving diminished evidentiary
weight to letters from relatives and friends because they were from interested witnesses not
subject to cross-examination).

U.S. Department, of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A058 536 724 - Baltimore, MD

Date:

OCT 2 5 2016

In re: IRENE O ATSEYINKU

I respectfully dissent from the majority's affirmance of .the Immigration Judge's

determination that the respondent abandoned her lawful permanent resident status.
The Immigration Judge did not explicitly make an adverse credibility finding in any of his
decisions in this matter. Thus, the respondent, whose case is governed by the provisions of the
REAL ID Act, has a rebuttable presumption of credibility on appeal. See section 240(c)(4)(C) of
the Act, 8 U.S.C. 1229a(c)(4)(C).
The respondent, a native and citizen of Nigeria, was admitted to the United States as a lawful
permanent resident on October 4, 2006 (I.J. Apr. 21, 2015 at 2; Tr. at 27). She then departed the
United States for Nigeria and continued to travel between those two countries from 2006 to 2009
(I.J. Apr. 21, 2015 at 5; Tr. at 41-43; Exh. 2(A)). Uncontested evidence presented by the
Department of Homeland Security ("DHS") indicates that the respondent was present in the
United States for 70 days out of the 1,066 days between October 4, 2006, and her last encounter
at a port of entry on September 3, 2009 (I.J. Apr. 21, 2015 at 5; Exh. 2(A)). While the
respondent was traveling between the United States and Nigeria from 2006 to 2009, she was
never away from the United States for more than a year; however, two of her trips to Nigeria
lasted for about 11 months (I.J. Feb. 14, 2013 at 5-6; Exh. 2(A)).
The DHS submitted some evidence to endeavor to meet its burden of proof to establish that
the respondent abandoned her lawful permanent resident status (Exh. 2). See Matter of Huang,
19 I&N Dec. 749, 754 (BIA 1988). This evidence included a record of the respondent's arrivals
and departures in the United States, her sworn statement taken at an airport on
September 3, 2009, and a copy of an unsigned record of withdrawal of application for admission
(I.J. Feb. 14, 2013 at 3; Exh. 2(A)-(C)). The respondent's sworn statement indicates that she
intended to take her minor child, who was with her at the airport, back to school in Nigeria at
that time (I.J. Feb. 14, 2013 at 6; Exh. 2(B)).
The respondent presented testimony and other evidence that she argues is indicative of her
intent to retain her residence in the United States. The respondent testified that she had to return
to Nigeria to care for her mother, who had fallen ill in 2005 (I.J. Feb. 14, 2013 at 6; Tr. at 27-28,
30, 43). She also testified that her trips to Nigeria were necessary in order to facilitate the
process of bringing her minor daughter to the United States (I.J. Feb. 14, 2013 at 6; Tr. at 28-29,
44-45). This process was delayed due to a contentious custody dispute over her daughter
(I.J. Feb. 10, 2011 at 5; I.J. Apr. 21, 2015 at 7; Tr. at 30, 36-37). The respondent also testified
that she always purchased roundtrip tickets from the United States back to Nigeria (with specific
return dates) because it was actually less expensive than purchasing one-way or "open" tickets
(I.J. Feb. 10. 2011 at 5; Tr. at 46-49). With regard to her sworn statement stating that she
intended to return to Nigeria so that her daughter could resume attending school there, the
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DISSENTING OPINION: Linda S. Wendtland, Board Member

A058 536 724

respondent testified that when she completed the sworn statement, she had been under
considerable stress, having been at the airport with her daughter for 6 hours (I.J. Apr. 21, 2015 at
8; Tr. at 37; Exh. 2(B)).

With regard to the respondent's efforts to obtain employment in the United States, a
significant factor in assessing whether she intended to maintain her lawful permanent resident
status, the Immigration Judge initially found that the respondent submitted no evidence of her
attempts to obtain employment in the United States (I.J. Feb. 1 4, 201 3 at 8). See Singh v. Reno,
1 1 3 F.3d 1 5 1 2, 1 514-1 5 (9th Cir. 1 997) (stating that an alien's business affiliations and business
ties are factors to be considered in evaluating the alien's intent to retain lawful permanent
resident status in the United States). After the case was remanded to the Immigration Judge to
further develop the factual record, the Immigration Judge found that none of the employment
records submitted by the respondent sufficiently established that she was engaged in an active
search for employment in the United States before being placed in proceedings (1.J. Apr. 21,
201 5 at 5-6). In my view, the Immigration Judge clearly erred in this regard. See 8 C.F.R.
I 003.l(d)(3)(i).
The respondent presented a copy of an email from Bankers Life and Casualty dated
December 29, 2006, which indicated that she sent her resume to that company and was invited to
submit an application for employment (I.J. Apr. 21, 201 5 at 5-6; Exh. 3(F) at 29). The
respondent also presented a copy of an email dated October 14, 2006, from Ameriprise Financial
Advisors showing that the company received the respondent's resume and was interested in
interviewing her (1.J. Apr. 2 1 , 201 5 at 6; Exh. 3(F) at 26). These two documents, which the
Immigration Judge considered, are evidence that tends to show that the respondent was engaged
in an active search for employment in the United States upon her initial arrival here.
Notably, despite this Board's request to consider employment-related documents from
Ameriprise Financial Advisors in our January 21, 201 5, order, the Immigration Judge did not
consider an email exchange between the respondent and that company dated October 1 8, 2006
(Exh. 3(F) at 28). This email indicates that the respondent wrote to the company inquiring about
what kind of position they were offering, what the salary would be, and how she could register
with the company, although it is unclear what the respondent wanted to register for (Exh. 3(F) at
28). In turn, the company replied to the respondent's email by describing the position being
offered and indicating that it was interested in the respondent (Exh. 3(F) at 28). The company
2
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The documentary evidence that the respondent submitted and that is relevant to the period
before her Notice to Appear ("NTA") was issued included the following: emails relating to her
search for employment in the United States; her 2007 and 2008 state and federal income tax
records showing that she did not have any taxable income for those years; credit card account
statements showing mostly the absence of a balance with one exception in 2009 after the NTA
was issued; a Bank of America transaction record showing a withdrawal from her account made
in 2008; AT&T cell phone billing statements from September 7, 2008 to May 6, 2009; and the
respondent's Maryland Driver's License, issued in 2008 (I.J. Feb. 1 4, 2013 at 8-9; Exh. 3(F)-(G),
(I)-(L)). The respondent also submitted affidavits from her mother and a family friend that
corroborate her claim that she was engaged in a custody dispute over her daughter from 2008 to
2009 (I.J. Apr. 2 1 , 201 5 at 6-7; Exh. 3(C)-(D)).

A058 536 724

also attempted to set up an interview with the respondent and suggested specific days and times
for the interview (Exh. 3(F) at 28).

Additionally, upon review of the record in its totality, and in conjunction with the clear error
finding, I conclude that the DHS did not establish by clear, unequivocal, and convincing
evidence that the respondent abandoned her lawful permanent resident status. See Matter of
Huang, supra; Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003); Ward v. Holder, 733 F.3d
601, 604 (6th Cir. 2013); Hana v. Gonzales, 400 F.3d 472, 476 (6th Cir. 2005). There is
evidence in the record indicating that the respondent was absent from the United States for long
periods of time (I.J. Apr. 21, 2015 at 5; Exh. 2(A)). However, there is also evidence in the
record, including the respondent's credible testimony and corroborative affidavits, indicating that
the respondent was in the process of settling into a life in the United States, and that this process
was delayed due to her obligation to care for an ill relative and a custody dispute regarding her
daughter, which had to be resolved before she could bring her daughter to the United States to
live with her (Tr. at 27-30, 36-37, 43-45; Exhs. 3(C)-(D), (F)-(G), (1)-(L)). See Hana
v. Gonzales, supra, at 476 (holding that an alien did not abandon her lawfully admitted
permanent resident status by spending the majority of her time after admission in her home
country for the purpose of ensuring her family's safety while she prepared to bring them to the
United States and assisting her terminally ill mother). 1 I am not persuaded that the record
contains clear, unequivocal, and convincing evidence that the respondent lacked a continuous
and uninterrupted intention to return to her residence in the United States.
Accordingly, I would sustain the appeal, vacate the Immigration Judge's decision, and
terminate removal proceedings.

cfv:Jd:d
Board Member

To the extent that the Immigration Judge may have de facto assigned the respondent the
burden of proof with regard to the issue of abandoning her lawful permanent status, this was
inconsistent with his earlier and uncontested determination that the burden was on the
government to prove abandonment by clear, unequivocal, and convincing evidence
(I.J. Apr. 2 1, 20 15 at 4, 6-7; Resp. Brief at 4-10).

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Moreover, the Immigration Judge did not address the respondent's credible testimony during
proceedings describing how she interviewed for several jobs in the United States but was
ultimately unable to find employment, partly due to her unsuccessful attempts to obtain a
position commensurate with her qualifications (Tr. at 30, 45-46). Based on the evidence the
respondent presented, I conclude that the Immigration Judge clearly erred when he found that the
record did not establish that the respondent actively searched for employment in the United
States prior to being placed in proceedings (I.J. Apr. 21, 2015 at 6).

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BALTIMORE, MARYLAND

IN REMOVAL PROCEEDINGS
A# 058-536-724

ATSEYINKU, Irene 0.
RESPONDENT
CHARGE:

Section 21 2(a)(7)(A)(i)(I) of the Immigration and Nationality Act

("INA" or "Act"), as amended, as an immigrant who, at the time of
application for admission, is not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing card, or other valid
entry document required by the Act, and a valid unexpired
passport, or other suitable travel document, or document of identity
and nationality as required under the regulations issued by the
Attorney General under section 2 1 l(a) of the Act.

APPLICATIONS:

Admission as returning resident.

DECISION AND ORDER

APPEARANCES
ON BEHALF OF RESPONDENT:
Christian U. Aguocha, Esq.
1 401 Mercantile Lane, Suite 200D
Largo, MD 20774

ON BEHALF OF THE DHS:

Jennifer Piatesk.i, Esq.
Assistant Chief Counsel
3 1 Hopkins Plaza 1 6th Floor
Baltimore, MD 2 1 20 I

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IN THE MATTER OF

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I.

Statement of the Case

initially entered the United States on October 4, 2006, as a lawful permanent resident ("LPR").
After repeated trips between the United States and Nigeria, the respondent attempted to enter the
United States at Baltimore Washington International Airport ("BWI") on September 3, 2009. At
that time, the Department of Homeland Security ("DHS") served the respondent with a Notice to
Appear ("NTA") charging her with removability under INA 212(a)(7)(A)(i)(l), alleging that
she had "not maintained [her] Lawful Permanent Status in the United States by living and
working in [her] native country of Nigeria." See Exh. 1.
On June 1, 2010, the respondent, through counsel, admitted allegations 1 through 4
contained in her NTA, conceding the following: (1) she is not a citizen or national of the United
States; (2) she is a native and citizen of Nigeria; (3) she was admitted as a Lawful Permanent
Resident on October 4, 2006, in Virginia; and (4) she applied for admission as a Returning
Lawful Permanent Resident on September 3, 2009. Id. The respondent denied allegation 5, that
she has not maintained her Lawful Permanent Status in the United States by living and working
in her native country of Nigeria. Id. The respondent also denied the charge of removability
under INA 2l(a)(7)(A)(i)(I). Id. Subsequent proceedings were held on the contested charge.
The respondent testified at a hearing on January 26, 2011. On February 10, 2011, the
Court rendered an oral decision finding that the respondent had abandoned her LPR status and
was removable as charged. See IJ Removability Decision at 5 (Feb. 10, 2011). The respondent
appealed the Court's decision to the Board of Immigration Appeals ("BIA") on March 1 1, 201 1.
On November 14, 2012, the BIA remanded the case to the Court for further proceedings
consistent with its findings. See Irene 0. Atseyinku, A 058 536 724 (BIA Nov. 14, 2012) ("2012
Remand Decision"). The BIA asked the Court to make complete findings of fact on the
following issues: ( 1 ) the respondent's claim that her travels to Nigeria were primarily motivated
by a desire to visit her ailing mother; (2) the respondent's claimed purchase of a car in the United
States through a friend; (3) the respondent's claim that she sought employment in the United
States; (4) the respondent's filing of United States taxes and maintenance of a U.S.-based bank
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The respondent is a female native and citizen of Nigeria, born August 4, 1972. She

account, credit card, and cellular telephone while she was in Nigeria; and (5) statements made by
the respondent during her airport interview, her apparent withdrawal of her application for
admission, and her explanations for those statements and the withdrawal, and her reasons for
those absences. Id. The Court subsequently issued a written decision on February 14, 20 1 3,
charged. The Court found that the DHS by clear, unequivocal, and convincing evidence had
shown the respondent had abandoned her LPR status. According to the Court, the respondent's
repeated but brief visits to the United States indicated her lack of intent to remain an LPR and,
moreover, her travels abroad were not "temporary" pursuant to INA 1 0 l (a)(27). See IJ
Removability Decision at 1 0 (Feb. 1 4, 201 3).
The respondent again appealed the Court's decision to the BIA on March 12, 2013 . On
January 2 1 , 2015, the BIA remanded the case to the Court for further factual findings.
Specifically, the BIA called upon the Court to consider: (1) letters from two companies
indicating that the respondent had applied for employment in 2006; and (2) two letters submitted
by the respondent corroborating her claim that her daughter was the subject of a family feud that
could not be resolved until September 2009. See Irene 0. Atseyinku, A 058 536 724 (BIA Jan.
2 1 , 20 15) ("2015 Remand Decision").
Having reviewed the evidence of record and the applicable law, the Court's written
decision and order now follow.
II. Evidence Presented
A. Testimonial Evidence

The respondent testified at a hearing on January 26, 2011. Her testimony was
subsequently transcribed while the case was on appeal before the BIA. Consequently, the
Court will rely on that transcript to refer to any testimonial evidence in its decision. See
generally Transcript ofHearings in In re Irene 0. Atseyinku, A 058 536 724 ("Transcript").
B. Documentary Evidence

The following documentary evidence was considered by the Court and admitted into the
record: Exhibit 1 , Notice to Appear (dated September 3, 2009); Exhibit 2, DHS Group Exhibit,
Tabs A-E; Exhibit 3, Respondent's Motion to Terminate Proceedings, Tabs A-L; Exhibit 4,
Court's Order Denying Respondent' s Motion to Terminate Proceedings.

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denying the respondent' s application for admission and ordering the respondent removed as

III.

Statement of Law

In general, even if an alien makes frequent visits to the United States, she can lose her
LPR status if she spends long periods of time abroad without intending that the United States be
her permanent place of residence. See, e. g. , Matter ofHuang, 1 9 I&N Dec. 749, 754 (BIA
government to prove abandonment by "clear, unequivocal, and convincing evidence." Huang,
1 9 I&N Dec. at 754; accord Katebi v. Ashcroft, 396 F.3d 463 , 466 ( 1 st Cir. 2005); Moin v.

Ashcroft, 335 F.3d 4 1 5 , 4 1 9 (5th Cir. 2003); Ward v. Holder, 733 F.3d 60 1 , 604 (6th Cir. 20 1 3).
In determining whether or not a respondent has abandoned her LPR status, the Court will
consider the totality of the circumstances, including "the location of the alien's family, property,
and job, and of course the length of the alien's trip(s) abroad" along with "other evidence in the
record demonstrating the alien's intent with regard to maintaining her LPR status."

Karimijanaki, 579 F.3d at 7 1 5 (citing Hana v. Gonzales, 400 F. 3 d 472, 476 (6th Cir. 2005)) .
Resolving important matters abroad, for example, caring for an ill relative, or bringing family
members to the United States may constitute a valid basis for an extended absence from the
United States. See Hana, 400 F.3d at 476 (upholding alien's LPR status where she spent her
extended absence from the United States in Iraq to prepare her family for their emigration to the
United States and to help her terminally ill mother-in-law).
A trip abroad that is temporary will not terminate a lawful permanent resident's status.

See INA I 0 1 (a)(27). Whether a respondent's trip abroad is temporary, for purposes of
determining if she abandoned her LPR status, depends on if (a) it is for a relatively short period,
fixed by some early event, or (b) it will terminate upon the occurrence of an event that has a
reasonable possibility of occurring within a relatively short period of time. See INA
1 0 1 (a)( 1 3 )(C)(i-ii); see also Huang, 1 9 I&N Dec. 7 53 . Even if a respondent' s time abroad is not
relatively short or lacks a fixed termination date, it still can be considered temporary if the alien
had a "continuous, uninterrupted intention to return to the United States during the entirety of
[her] visit." Aleem v. Perryman, 1 1 4 F.3d 672, 677 (7th Cir. 1 997). The Court can determine
such intent by considering, in addition to the respondent' s testimony, "such factors as the alien's
familial, financial, business and professional ties to the United States and foreign countries, as
wel l as any relevant conduct while abroad." Id. (citing Chavez-Ramirez v. INS, 792 F.2d 932
(9th Cir. 1 986)).
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1 988); Karimijanaki v. Holder, 579 F.3d 7 1 0, 7 1 5 (6th Cir. 2009). The burden is on the

As a final matter, repeated, but very brief, returns to the United States over an extended
period can indicate a lack of intent to remain a lawful permanent resident. See Moin, 335 F.3d at
420. For example, abandonment has been upheld where a lawful permanent resident took
several short trips to the United States resulting in a total of only six months in the United States
IV.

Findings of Fact

The Court has considered the documentary evidence in the record and the testimony
presented, as well as the arguments of counsel. The Court finds that the government has met its
burden to prove by clear, unequivocal, and convincing evidence that the respondent abandoned
her lawful permanent resident status. See Huang, 19 I&N Dec. at 754.
The respondent was admitted to the United States as an LPR on October 4, 2006 through
the diversity visa lottery. See Exh. 1. According to DHS records, the respondent was physically
present in the United States only 70 days out of the 1 ,066 days between October 4, 2006 and
September 3, 2009 when she was placed in removal proceedings. See Exh. 2, Tab A. During
that time, the respondent repeatedly left the United States and her visits to this country were
extremely brief in duration. In fact, the shortest visit lasted a mere five days in December 2007,
while the lengthiest was a total of only 22 days in September 2007. See id. Such repeated, but
very brief, returns to the United States from Nigeria indicate the respondent's overall lack of
intent to remain a lawful permanent resident. See Moin, 335 F.3d at 420. Additionally, many of
the respondent' s trips to Nigeria lacked a fixed end point, in contrast to her trips to the United
States, which were of only a short duration. See id. When considered together with the other
evidence in the record and highlighted by the DHS, the respondent's repeated, extended absences
from the United States establish that she did not intend to maintain her LPR status. This finding
of the Court is substantiated through consideration of the two matters specifically requested by
the BIA in its 20 1 5 Remand Decision, which are discussed in detail below.
1. The respondent's submission of letters from two companies indicating that she had
applied for employment in 2006.

The BIA' s 20 1 5 Remand Decision noted that the Court in its written decision of February
1 4, 20 1 3 referred only to a letter from a single company as evidence of the respondent's efforts
to obtain employment in the United States prior to being placed in proceedings. That letter is the
e-mail message from Bankers Life and Casualty Company, dated December 29, 2006, which
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over a 54-month-long period. See id.

invited the respondent to apply for the company's sales management training program. See Exh.
3, Tab F at 29. The Court notes that this e-mail message indicates only the preliminary stages of
the employment application process, in that it merely invited the respondent to submit an
application, and did not schedule any meeting or interview with the respondent to discuss her
letter in support of the respondent's claims.
The second letter, dated October 14, 2006, is an e-mail message from Ameriprise
Financial Services. It states that the company recently had received a copy of the respondent's
resume from Monster, the online job recruitment provider, and thought she might be a good fit
for a position with the company. The letter also invited the respondent to participate in one of its
upcoming career interview workshops. Id. at 26. Again, this second e-mail message does little
to strengthen the respondent's claims that she was actively searching for employment in the
United States prior to being placed in proceedings. It appears instead that she merely had
submitted her resume to Monster and that a potential employer contacted her by e-mail to
determine if she wished "to begin the interview process." Id. The Court further notes that
Monster is a global firm and that the respondent easily could have submitted her resume online
from Nigeria, and not during one of her brief stays in the United States. For these reasons, the
Court finds that evidence in the record of a second letter, or e-mail message, from a potential
employer in 2006 does little or nothing to bolster the respondent' s claim that she was engaged in
an active search for employment in the United States prior to being placed in proceedings. It
further does not explain why the respondent did not submit evidence of applications for other
jobs in the United States after 2006 and prior to being placed in proceedings. The mere existence
of two e-mail messages from employers in 2006 accordingly does not provide convincing,
corroborative evidence of the respondent's intent to maintain her LPR status in the United States.
2. The respondent's submission of two letters corroborating her claim that her
daughter was the subject of a family feud that could not be resolved until September
2009.

The second issue raised in the 20 1 5 Remand Decision was the need for the Court to enter
factual findings regarding the respondent's claim that she was unable to bring her daughter to the
United States until after resolving a custody dispute in September 2009. The BIA specifically
noted two affidavits in the record that the respondent had submitted to corroborate her claim that
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suitability or qualifications for the position. The Court therefore affords little weight to this first

she intended to have her daughter remain with her in the United States permanently. The first of
these affidavits is from the respondent's mother and describes the period that the respondent
resided with her parents during her visit to Nigeria between September 9, 2008 and September 2,
2009. The affidavit discusses how the father of the respondent's daughter sought to retain
families, and how "[i]t took the intervention of the elders of the family and those of the father of
her daughter for it to be resolved." See Exh. 3 , Tab C at 4. The second affidavit, written by "a
very close family friend" of the respondent, provides a virtually identical recounting of events.
Id. , Tab D at 7.
While the affidavits from the respondent's mother and her family friend generally
corroborate her claim of a protracted custody dispute in 2008 and 2009, the Court finds the
affidavits to be of very limited probative value. First, the affidavits were submitted by close
family members or friends of the respondent, and therefore they were written by individuals with
a vested interest in supporting the respondent's claims. Second, the respondent has not
submitted any "independent evidence" to corroborate the existence of a custody dispute as
described in the affidavits, for example, information about where and with whom the
respondent' s daughter resided while in Nigeria or where she attended school. See Gandziami
Mickhou, 445 F.3d 351, 358 (4th Cir. 2006) . Finally, the Court finds the two affidavits
particularly lacking in probative value because of their almost identical nature. In fact,
paragraphs 5, 7, 8, and 9 of the mother's affidavit and paragraphs 4 through 7 of the family
friend's affidavit use the same language, word-for-word, to describe the custody dispute. See id. ,
Tabs C-D. The Court finds it implausible that two unique individuals would draft identical
affidavits on this point if they were not either written at the direction of the respondent or
fabricated in their entirety to support her claim. Accordingly, the Court does not consider the
two affidavits to provide strong corroborative evidence that the respondent was delayed in
returning to the United States because of the custody dispute or that she ever intended to have
her daughter remain permanently in the United States.
Further casting into doubt the veracity of the two affidavits are the statements made by
the respondent herself. As discussed in the Court's written decision of February 14, 20 1 3 , the
respondent signed a sworn statement upon arriving at BWI on September 3, 2009, which led to
the issuance of the NTA and her placement in proceedings. When asked how long she planned
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custody of the child, how the subsequent custody dispute led to "a serious feud" between the two

to stay in the United States, the respondent stated that she "intended to stay about 1 1 ays and
then take back [her] daughter to school in Nigeria." See Exh. 2, Tab B at 6. This statement
directly contradicts the respondent's assertion that she intended to have her daughter remain in
the United States permanently. Subsequently, the respondent testified before this Court that at
"stressed out" after having been detained for approximately six hours. Tr. 37:22-23. Even
assuming that the respondent felt stressed due to her lengthy trip from Nigeria and her delays at
BWI, that fails to explain why she would answer a straightforward question about her intended
length of stay in the United States with a response that she now asserts was factually incorrect.
In addition, during her testimony before the Court, the respondent provided further evidence that
her underlying intent was for her daughter only to remain in the United States a short period.
When asked about her daughter' s previous visits to the United States before 2009, the respondent
answered as follows:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

Had she ever been here before 2009?

Yes.
Was she with you every time you came?
Yes.
How many times was she with you?
I have no . . .
Did she ever live her[e] permanently before 2009?
No.
Did she ever attend school in the United States before 2009?
No.

Tr. 4 7: 1 2-22. Thus, through her own sworn statement and also her statements before the Court,
the respondent clearly evidenced that she did not intend for her daughter to remain permanently
in the United States when they arrived at BWI in September 2009. Instead, the respondent' s
repeated pattern o f behavior was for her daughter to accompany her o n her exceedingly brief,
annual visits to the United States, for the primary purpose of maintaining her LPR status. These
facts distinguish the current case from Hana v. Gonzales, in which the Sixth Circuit found that
the respondent consistently had maintained an intent to reside permanently in the United States,
and that her extended trips abroad were for the purpose of preparing her family to emigrate to the
United States and to help her terminally ill mother-in-law. 400 F.3d at 476. Viewed in this light,
the affidavits included in the record of this case lend no further credibility to the respondent' s
claim that she could not bring her daughter to the United States permanently until her custody
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the time she made the sworn statement and withdrew her application for admission, she was

dispute was resolved in September 2009, or that she had intended to enroll her daughter in school
permanently in the United States. Therefore, and in consideration of all the above evidence, the
Court finds that the respondent did not intend to return permanently to the United States and she
had abandoned her LPR status.
Conclusion

Having reviewed all of the available evidence, the Court finds that the government has
shown by clear, unequivocal, and convincing evidence that the respondent has abandoned her
lawful permanence resident status. The respondent's repeated, but very brief, visits to the United
States indicate her lack of intent to remain a lawful permanent resident. Her travels abroad were
not "temporary" pursuant to INA I0 l (a)(27) and the Court is convinced that, based on the
totality of the circumstances, the respondent did not intend to make the United States her
permanent residence. The respondent has not requested any relief from removal. The Court,
therefore, sustains the charge of removability under INA 2 12(a)(7)(A)(i)(I) and will order the
respondent removed to Nigeria.

ORDER
It is this O\Jday of I
Court, sitting at Baltimore, Maryland ERED:
I.

that the respondent's application as returning resident is DENIED; and

II.

that the respondent shall be REMOVED to Nigeria as charged.

/)

/j>if

, 20 15, by the United States Immigration

e c:;;;"

DaviclCrosland
United States Immigration Judge
Baltimore, Maryland

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V.