Mohammed Aleem and Rahmatunnisa Aleem v. Brian R. Perryman, District Director of the Immigration and Naturalization Service

Citation: 114 F.3d 672Docket: 96-3686

Court: Court of Appeals for the Seventh Circuit; August 21, 1997; Federal Appellate Court

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Mohammed and Rahmatunnisa Aleem, permanent resident aliens of the U.S. originally from India, were excluded from the U.S. by an immigration judge who determined they had abandoned their residency status under 8 U.S.C. § 1182(a)(20). The Board of Immigration Appeals upheld this ruling. The Aleems sought judicial review in the district court, which found substantial evidence supporting the Board's decision and denied their habeas petition. 

Mr. Aleem immigrated to the U.S. in 1977, followed by his wife in 1981. Due to financial difficulties and lack of employment opportunities in the U.S., Mr. Aleem accepted a teaching position in Bahrain in 1984, moving there with his wife and children. They abandoned their U.S. apartment and personal property, and Mr. Aleem obtained a two-year reentry permit before leaving. His contract in Bahrain was renewed multiple times, and during his five years there, he returned to the U.S. briefly in 1986 and 1988, each time with the intent to find work but ultimately returning to Bahrain. The Aleems did not leave any belongings in the U.S. during these visits, which contributed to the determination that they had abandoned their permanent residency.

In August 1989, Mr. Aleem returned to the U.S. with plans to stay for two to three weeks while maintaining his residence status before returning to Bahrain for the school year. Upon arrival, he and his wife sought entry as lawful permanent residents but were questioned by an Immigration Inspector. Mr. Aleem stated that he had resided in Bahrain since 1984, had not maintained a U.S. residence, and his reentry documents had expired. He explained his intent to maintain status by returning within a year of his last departure, which led to their placement in exclusion proceedings for lacking valid entry documents.

During the proceedings, Mr. Aleem testified that he filed U.S. tax returns for his foreign earnings, paid off a student loan prior to his return to preserve his credit, and maintained membership in professional organizations for potential job references in the U.S. Despite this, the immigration judge determined that the Aleems had abandoned their lawful permanent resident status, a finding later affirmed by the Board of Immigration Appeals. The Board concluded that Mr. Aleem's actions did not align with his stated intent to return permanently, noting a lack of significant professional, financial, or familial ties to the U.S., and insufficient evidence of job-seeking efforts during his visits.

The applicant's employment with the University of Bahrain was ongoing, contingent upon the University's needs and his desire to remain employed there. At the time of exclusion proceedings, the applicant planned to return to Bahrain and had a renewed contract, indicating an intention for indefinite employment. The context surrounding the applicant's absence involved his spouse's contract in Japan, which lacked a clear endpoint, complicating the classification of his absence as a temporary visit abroad.

The Aleems filed a habeas corpus action challenging the Board's decision that they had abandoned their permanent resident status, arguing that the decision lacked substantial evidence. The district court denied their petition, prompting their appeal. The review process is de novo, affirming the Board's decision unless there was a legal error or insufficient evidence supporting its findings. The abandonment of permanent resident status is assessed under a substantial evidence standard due to its fact-specific nature.

To gain re-entry into the U.S., an immigrant typically needs a valid immigrant visa and travel documents, but those returning from a temporary visit abroad may be exempt from this requirement. The critical question is whether the Aleems' stay in Bahrain qualifies as a 'temporary visit abroad.' While the phrase has not been directly defined by this Court, other Circuits have attempted to clarify it. The Second Circuit, for instance, suggested that 'temporary' implies a short-term intention to return, while also noting that the duration alone does not define 'temporary'; the visitor's intention is pivotal in such determinations.

The Third Circuit's adoption of the Lesto standard in United States ex rel. Alther v. McCandless established that an animus revertendi, or intent to return, must be a clear and affirmative element for an alien to retain their status while abroad. A lack of a permanent intention to remain does not suffice to maintain alien status. The burden of proof remains with the government, which must provide substantial evidence. The Ninth Circuit reinforced this view, indicating that not all non-permanent visits abroad qualify as "temporary." Specifically, a permanent resident is considered to be on a "temporary visit abroad" if their visit is for a short, predetermined duration or if it is contingent upon an event likely to occur soon. If the visit is not time-fixed and the event does not happen promptly, it will only be deemed temporary if there is a continuous intent to return throughout the visit. 

In the case of the Aleems, the evidence indicated they left the U.S. in 1984 due to financial difficulties and settled in Bahrain, where Mr. Aleem secured employment. They had no family, property, or significant business ties remaining in the U.S. After five years in Bahrain, Mr. Aleem's teaching contract had been renewed multiple times, indicating an indefinite employment situation. Although he testified an intention to return to the U.S. upon completing his contract, the Board noted his conduct suggested a lack of a definite return plan, and thus he was not considered to be on a temporary visit. The self-serving nature of his testimony did not warrant credit against the established evidence of his intent and circumstances.

The Aleems contended on appeal that their children's U.S. citizenship created family ties justifying their return to the United States. However, the court found this claim strained since the Aleems exercised control over their children to remove them from the U.S. without evidence of plans to return. The court noted that while the children's citizenship might be relevant in some contexts, it was not sufficient on its own to demonstrate the Aleems' intent to return.

Additionally, Mr. Aleem's membership in professional organizations was deemed unconvincing as it only indicated potential benefits for a job search rather than a definitive intent to return to the U.S. His testimony suggested he aimed to keep options open, lacking substantive ties to the U.S.

The Aleems also argued that filing U.S. income tax returns while abroad reflected their desire to retain lawful permanent resident status. Mr. Aleem claimed compliance with obligations as a permanent resident, but the court emphasized that mere compliance did not equate to an uninterrupted intention to return to the U.S. The Board's determination, supported by substantial evidence, was that the Aleems did not maintain such an intention.

Consequently, the district court's judgment denying the Aleems' habeas corpus petition was affirmed.

The Board found no credible evidence supporting Mr. Aleem's claims of job searching during his brief visits to the United States, relying solely on his assertions. Consequently, substantial evidence backed the Board's conclusion that he did not seek employment. The district court's decision to deny the Aleems' habeas corpus petition was affirmed. Additionally, it is noted that the recent amendments to the Immigration Code, specifically at 8 U.S.C. 1182(a)(7)(A)(i)(I), do not apply to this case, and references to the Immigration Code will reflect the provisions prior to recodification. The Aleem children, being born in the U.S., are U.S. citizens. The green card stipulates that it is valid in place of a visa if the holder has not been absent for over a year and is not otherwise excludable under immigration laws. The definition of "lawfully admitted for permanent residence" is provided under 8 U.S.C. 1101(a)(20).