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Salar Khoshfahm v. Eric H. Holder Jr

August 25, 2011

SALAR KHOSHFAHM, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A047-544-008

The opinion of the court was delivered by: B. Fletcher, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted June 8, 2011-Pasadena, California

Before: Betty B. Fletcher and N. Randy Smith, Circuit Judges, and Rudi M. Brewster, District Judge.*fn1

Opinion by Judge B. Fletcher; Concurrence by Judge N.R. Smith

OPINION

Petitioner Salar Khoshfahm ("Khoshfahm") seeks review of a March 8, 2010 decision of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") finding of removability and denial of his application for asy- lum and withholding of removal. The BIA affirmed the IJ's conclusion that Khoshfahm, who lived for approximately six continuous years with his parents in Iran, abandoned his lawful permanent resident ("LPR") status. The BIA also affirmed the IJ's determination that Khoshfahm failed to meet his burden of proof as to eligibility for asylum and withholding of removal. Khoshfahm timely appealed. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition.

I.

Khoshfahm was born in 1988, in Tabriz, Iran. In 2001, when he was thirteen, he came with his parents to the United States. He and his parents obtained LPR status through a petition filed on their behalf by Khoshfahm's United States citizen uncle, who lives in Sacramento, California. Khoshfahm and his parents lived in the United States with this uncle for seven months. Khoshfahm's father worked for about three of those months in the security department of a company, while his mother remained at home. Khoshfahm believes that his father opened a bank account while he was working. His father then quit his job because the family decided to go back to Iran to sell the property they owned there in order to raise money to live in the United States. His parents did not sell the house that they owned in Tabriz before they traveled to this country because they had only six months to prepare for the journey.

Khoshfahm testified that it was always his family's intent to return to the United States after selling their property. The terrorist attacks of September 11, 2001, however, occurred one week after their return to Iran, and Khoshfahm's family had difficulty obtaining an airline ticket for two or three months thereafter. Then, in November of 2001, Khoshfahm's father became ill with a heart condition, for which he had to be hospitalized. His heart condition restricted his ability to travel. This condition, and the resulting travel restriction, lasted for several years. Khoshfahm's mother stayed in Iran to care for his father.

Khoshfahm finished middle school and then high school in Iran. He testified that he "always wanted" to return to the United States, but that he had to remain in Iran until he was 18 due to Iran's obligatory military service, and because, before turning 18, he possessed a merely temporary passport and could not "go [on] prolonged trips outside" the country by himself. Khoshfahm explained that the Iranian government would not issue him a permanent passport until he had either fulfilled or been excused from Iranian military service. Khoshfahm was eventually excused from military service and, when he turned 18, he obtained a permanent passport, which allowed him to return to the United States.

On February 28, 2007, approximately five months after his eighteenth birthday, Khoshfahm arrived at San Francisco International Airport and applied for admission to the United States as a returning resident. Khoshfahm was paroled into the United States for deferred inspection. Khoshfahm's parole was thereafter revoked. On March 21, 2007, the Department of Homeland Security ("DHS") filed with the Immigration Court a Notice to Appear charging him with inadmissability under § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA), 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.

A hearing on the charge of removability was held before the IJ. When the IJ asked him where his parents were at the time, Khoshfahm testified, inter alia, that his father's heart condition (which had prevented him from traveling) had recently "improved," but that his parents were waiting ...


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