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Aleem v. Perryman

June 12, 1997

MOHAMMED ALEEM AND RAHMATUNNISA ALEEM, PETITIONERS-APPELLANTS,

v.

BRIAN R. PERRYMAN, DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 1660 John A. Nordberg, Judge.

Before CUMMINGS, MANION, and DIANE P. WOOD, Circuit Judges.

CUMMINGS, Circuit Judge.

ARGUED APRIL 18, 1997

DECIDED JUNE 12, 1997

Upon their return from an extended stay in Bahrain, an immigration judge determined that Mohammed Aleem and his wife Rahmatunnisa, both of whom are permanent resident aliens of the United States, should be excluded from this country, pursuant to 8 U.S.C. sec. 1182(a)(20), *fn1 because they had abandoned their permanent resident status. The Board of Immigration Appeals ("Board") affirmed this decision and the Aleems sought judicial review in the district court. Finding the Board's decision to be supported by substantial evidence, the district court denied their habeas petition. For the following reasons, we affirm.

BACKGROUND

Mr. and Mrs. Aleem are citizens of India. Mr. Aleem immigrated to the United States and became a lawful permanent resident in 1977. Four years later, his wife followed suit. In 1984, Mr. Aleem completed a Masters degree in Computer Science at DePaul University in Chicago, but was unable to find work in his field. Because of his mounting debt and inability to find work in the United States, he applied and was accepted for a teaching position at Gulf Polytechnic University (later named University of Bahrain) in the country of Bahrain. He accepted this position and left for Bahrain in September 1984 accompanied by his wife and two children, a three-year-old and a newborn. *fn2 When the Aleems left for Bahrain, they abandoned their apartment, disposed of their personal property, and had no relatives remaining in the United States. Prior to leaving the United States, Mr. Aleem obtained a re-entry permit from the INS valid for a two-year absence from the United States.

Mr. Aleem's initial contract with Bahrain University was for a two-year term. It was subsequently extended on several occasions. First, the contract was renewed for another two-year term (1986-1988) and then, following the second two-year term, the contract was renewed for an additional year (1988-1989). During this five-year period the Aleems lived in Bahrain in housing provided by the University. At the end of his first two-year teaching term in July 1986, Mr. and Mrs. Aleem returned to the United States (leaving the children in Bahrain) for two or three weeks. At the time of their return to the States, Mr. Aleem had already secured another two-year job offer from the University of Bahrain and two days after arriving in the United States, Mr. Aleem applied for a new re-entry permit. Nevertheless, Mr. Aleem testified that he returned to the States to look for work and that if he found work here he would not return to Bahrain. He further testified that he did in fact visit various firms but could not find work here. When the Aleems returned to Bahrain, they left no personal belongings here.

Mr. Aleem next returned to the United States in August 1988, using the re-entry permit he had obtained during his 1986 visit. On this visit he was accompanied by his wife and children. Once again, he stayed for two or three weeks. At the time of this second return visit, Mr. Aleem was still employed by Bahrain University having previously secured a one-year extension of his teaching contract. Mr Aleem testified that he returned to the States because he "intend[ed] to maintain my residency status." As with their previous visit, the Aleems stayed at the home of a friend, and when they returned to Bahrain they left no personal belongings in the United States.

The Aleems next returned to the United States in August 1989. Once again, Mr. Aleem had already secured a renewal of his teaching contract in Bahrain at the time of his visit. With respect to this visit, Mr. Aleem testified that he intended to stay for only two to three weeks to maintain his residence status and then return to Bahrain to teach for the 1989-1990 school year. After that, he intended to return to the United States permanently. When the Aleems reached the United States in August 1989, they sought to be admitted as lawful permanent residents returning from a "temporary visit abroad" and presented their Alien Registration Receipt Cards (colloquially referred to as "green cards") in support of their request for entry. When questioned by an Immigration Inspector, Mr. Aleem identified his current residence as Bahrain, where he had resided since 1984. He further stated that he had not maintained a residence in the United States since 1984 and that his documents allowing him to remain outside the United States had expired. He also stated that he had come to the United States to maintain his status and that he intended to remain for three weeks and then return to Bahrain. Mr. Aleem explained that he was informed that he could not obtain a third re-entry permit; so, he was attempting to maintain his resident status by returning to the United States within one year of his last departure. *fn3 These statements also applied to his wife. Based on this information, the Aleems were placed in exclusion proceedings because they were seeking to enter the country as immigrants without valid entry documents.

In addition to the testimony set out above, Mr. Aleem testified at his hearing that during his five-year stay in Bahrain, he filed income tax returns with the Internal Revenue Service reporting his foreign earnings (he incurred no tax liability for these earnings). Mr. Aleem stated that he did so because he felt it was his obligation as a permanent resident. Mr. Aleem also testified that two months before he returned to the United States in 1989, he paid off a United States Department of Education student loan and he did so because he intended to return to the United States and he did not want to lose his credit. Finally, Mr. Aleem testified that he maintained his membership in several professional organizations and the DePaul Alumni Association. When asked why he maintained his association with these organizations, Mr. Aleem answered, "Because these professional organizations, if I am associated with them, I will have, I mean a very good reference in my job if I come back to the United States in association with these professional organizations." He also regarded one of the professional organizations to be "one of the most distinguished professional organization[s] in the world."

The immigration judge found that the government had established by clear, convincing and unequivocal evidence that Mr. and Mrs. Aleem had abandoned their lawful permanent resident status. On appeal, the Board of Immigration Appeals affirmed. In pertinent part, the Board found as follows:

While the applicant's professed intent was to return to the United States, his actions have not conformed to that stated intent. The applicant did not maintain professional, financial, or familial ties to the United States beyond belonging to professional organizations based in this country and filing income tax returns. He has been absent from the United States, except for brief 2 to 3 week visits in 1986 and 1988, for the 5 year period preceding the commencement of the exclusion proceedings and intended to resume living overseas but for these proceedings. Although the applicant has stated that he looked for work during his visits to the United States, he has produced no evidence of his efforts to seek employment here.

Based on the record before us, it appears that the applicant's employment with the University of Bahrain would continue as long as the University needed his services and as long as he wished to remain there. At the time he was placed in exclusion proceedings, the applicant intended to return to Bahrain and resume working with the University, which had renewed his contract. It appears that the applicant intended to work indefinitely with the University of Bahrain, as long as the employment was available. Cf. Matter of Huang, [19 I&N Dec. 749 (BIA 1988)] (applicant's absence due to her husband's having a contract to work and study at a Japanese ...


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