Khoshfahm v. Holder

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 08-25-2011
  • Case #: 10-71066
  • Judge(s)/Court Below: Circuit Judge B. Fletcher for the Court; Senior District Judge R. Brewster; Circuit Judge N.R. Smith concurring
  • Full Text Opinion

The government has the burden to demonstrate by clear, unequivocal and convincing evidence that Legal Permanent Resident parents lacked the intent to return to the United States in order to impute such intention to their children.

Salar Khoshfahm sought relief from the Ninth Circuit after the BIA affirmed the IJ’s finding of removability and denial of his application for asylum and withholding of removal. Khoshfahm was born in Iran and at the age of thirteen he obtained Legal Permanent Residency (“LPR”) along with his parents through a petition filed by Khoshfahm’s uncle. After living in the U.S. for three months, Khoshfahm’s parents decided to move back to Iran to sell some assets. Khoshfahm spent six years in Iran before returning to the U.S. in 2007. DHS charged Khoshfahm with inadmissibility under § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”) and 8 U.S.C. § 1182(a)(7)(A)(i)(I) as “an immigrant who at the time of application for admission was not in possession of a valid entry document.” On appeal, the government maintained that Khoshfahm had abandoned his LPR status as imputed by the fact that prior to him turning 18, his parents remained in Iran. The Court held that the government must prove this by “clear, unequivocal, and convincing evidence” that Khoshfahm had the intention to abandon his LPR status. The Court found that the government failed to show that Khoshfahm’s parents had the intention to abandon their LPR status, and thus it could not be imputed onto him. Therefore, Khoshfahm remains a LPR and no adjudication is needed on his application for asylum and withholding of removal. PETITION GRANTED.

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