News From The Courts

Eshghan Khodagolian v. John Ashcroft
United States Court of Appeals for the Ninth Circuit

Eshghan Khodagolian, a native and citizen of Iran, petitioned the court for a review of a decision by the Board of Immigration Appeals (BIA), which affirmed a ruling by and immigration judge that he was subject to removal because he had abandoned his status as a lawful permanent resident (LPR). The Ninth Circuit ruled that as the government failed to show that Khodagolian gave up his LPR status, Khodagolian is not subject to removal.

Khodagolian received his LPR status on July 5, 1993, along with his wife and two children. When they first came to the U.S., Khodagolian was unsure of whether they would stay. Because of this, they brought little with them and did not sell all of their property in Iran.

Between July 1993 and September 1998, Khodagolian made several trips to Iran. In September 1993, Khodagolian left the U.S. for Iran for four months in order to sell some property and gather documents needed for the children’s schools and other purposes in the U.S. In 1995, Khodagolian went to Iran for five to six months to care for his dying mother and his recently orphaned nephews. In June 1997, Khodagolian went to Iran to sell the family’s house. When he arrived in Iran, he was stopped by police and notified that he had to pay certain taxes before he would be allowed to leave. Khodagolian was stuck in Iran until April 27, 1998, which the immigration judge conceded. However, Khodagolian did not return to the U.S. in September 1998. He argued that he had been forced to borrow money in order to pay the taxes and stayed in Iran until he could repay the loan. When he attempted to reenter the U.S., INS authorities suspected that Khodagolian was ineligible as a “returning resident” because he did not return within the one-year period required to reenter the U.S. without a reentry permit.

In October 2002, and immigration judge found that Khodagolian had abandoned his LPR status and was subject to removal. Khodagolian’s last trip to Iran was the main point in the argument that he abandoned his LPR status. Khodagolian appealed to the BIA, which affirmed the decision of the immigration judge.

While the immigration judge found that cumulatively, all three absences were sufficient to show abandonment, the Ninth Circuit, citing Chavez-Ramirez, 792 F. 2d at 936-37, concluded that Khodagolian’s absences, “whether viewed cumulatively or individually…do not support a conclusion that he abandoned his permanent resident status in the United States.” Khodagolian was present in the U.S. for a substantial amount of time between entry in 1993 and the removal proceedings. His absences did not demonstrate the intent or desire to give up his LPR status because he sold off assets and put his affairs in order while he was in Iran. Also, Khodagolian’s wife and children remained in the U.S. for almost the entire time. In addition, the immigration judge conceded that Khodagolian was forced to remain in Iran involuntarily for half of his third trip.