*2 her home *3 inwаs the United States and she POOLER, Circuit Judge: junior was still in high school he left. when petition This to review a decision 2, September 1999, On Matadin, age (“BIA”) Board of Immigration Appeals traveled to Guyana. She stated that the primarily concerns the proper allocation of purpose of her was to take care her when determining father, sick who had suffered a severe permanent whether a lawful resident heart attack just prior to her departure. (“LPR”) has abandoned status. Mi- She testified that she was the only persоn chelle Amanda Matadin seeks of a review who could take care of him because her decision of the BIA ordering her removed all siblings lived outside his sib- on the ground that she had abandoned her lings all States, lived the United and he lawful permanent resident status. Be- estranged was from his wife. She testified cause the agency allocated the burden of she brought when him home from the proof incorrectly, we remand to the agency hospital, his heart condition com- was proceedings. further pounded by diabetеs and hypertension, leaving him unable to walk. She testified BACKGROUND that she remained Guyana for the next Matadin, a native citizen of Guyana and thirty months, while she nursed him to who had LPR, been admitted as an left for health and attempted to find someone to Guyana September and did not run his lumber business for April him. return to the United States until April 2002, at age twenty, after purport- she had 2002. agency The found that she had edly nursed him health, back to she re- her abandoned LPR status and ordered turned the United States. Although her her deported. father a suffered mild heаrt problem Matadin and her father were admitted shortly home, before she returned she tes- to the United States in 1994 as lawful tified that he doing was much better when permanent residents, through a sponsor- she left him.2 According to testimony, her ship by Matadin’s aunt. Matadin was she remained Guyana solely to take care years twelve old at the time. Upon arriv- of her father and her continuing intent al, Matadin lived with aunt in Queens, her her entire trip abroad to re- was where she attended graduated and a from turn to her home in the United States once junior high school. Matadin’s re- mother she could leave him. in Guyana mained and never was admitted into country permanent as a During year resident. her last in Guyana, she Matadin’s father left New York in clerk, as a worked sales but there is no leaving Matadin in custody aunt, of her indication of how frequently worked. she and he returned to Guyana in 1996 or In June in Guyana, while she mar- Matadin was able to obtain scant docu- stating third doctor pre- that her father had mentary evidence of her father's a illness: sented himself with pain moderate chest and note a stating from doctor that her had pain father abdominal on March 2002. She testi- presented pains himself with suggestive chest fied poor that because of record-keeping prac- 29, 1999; of heart September disease on a frequent tices and by Guyanese relocations note a stating clinics, from second doctor had he doctors this was all the evidence father; twice treated her and a note a from she despite was able to obtain her best efforts. returning to her permanent resident testified that was citizen. She Guyanese
ried a
husband
States.
DHS
bring
home
intended
always
she.
States,
she
where
that she had abandoned
the United
concluded
back to
family.
She testified
proceed
start
and initiated removal
planned to
LPR status
Guya-
Embassy
an im
charged
being
that she did not ask
ings. She was
apply for
status
she could
entry
na whether
possession
not in
of valid
migrant
while
husband’s behalf
adjustment on her
document,
of 8 U.S.C.
in violation
was overwhelmed
because
1182(a)(7)(A)(i)(I). A
hear
deportation
A
father’s cаre.
few
of her
by the crisis
May
and the
ing was held on
returning to
after
months
(“IJ”) (Paul A. Defon-
Immigration Judge
*4
States,
behalf
filed on her husband’s
she
zo)
day
an oral decision
rendered
perma-
classify him as a lawful
petition to
charged.
as
Mata-
finding her removable
Thereafter,
for a
he filed
nent resident.
2006,
September
review of a
din seeks
relationship, Matadin
In a new
divorce.
Appeals
Immigration
Board of
order of the
in
citizen child
to an American
gave birth
(“BIA”),
of the IJ. See
affirming the order
father,
testi-
she
whose
Septembеr
Amanda Mata
In the Matter Michelle
in
fied,
support the child
help
continues to
(BIA
din,
September
No. A44 269 993
applica-
filed an
She
the United States.
2006),
(Immig. Ct.
aff'g No. A44 269 993
April
in
naturalization
tion for her own
2005).
City May
N.Y.
in
employed
New
2005. She has been
hearing,
the
At the outset of
removal
July 2002.
as a cashier since
York
Matadin that she bore the
IJ informed
has
testimony, Matadin
According to her
decision,
In
oral
proof.
his
burden
family
Guyana:
ties in
she
meaningful
few
when,
here,
perma-
explained that
IJ
in
of them lives
siblings, but none
has
continuously
been
absent
nеnt resident has
Guyana,
lives in
but
Guyana; her mother
seeking
year prior
than a
for more
only rarely while
her
spoke
Matadin
readmission,
has the burden
the resident
mother has not
Guyana
in
and her
she was
not abandon
to demonstrate that she did
Matadin
Matadin since
custody
had
residence
permanent
her lawful
her
without
came to the United States
course of her absence.
her fa-
Regarding
age
mother at
twelve.
decision,
ther,
that she is not sure
found that
she testified
In the oral
IJ
Guyana
in
or whether
pass-
whether he is still
to have
“appear[ed]
Matadin
testified
she
he is still alive: she
knowledge of her father’s actual
ing
medi-
neighbors to ask whether
called his former
him in
while she resided with
cal condition
him;
called his former
they have seen
she
conclusion,
Guyana.”
support
of this
business;
called his former
she
place of
to name
inability
cited Matadin’s
the IJ
doctors;
members of
has contacted
she
taking.
her father was
the medications
only that
family;
she has learned
but
testimony,
stated the num-
During her
she
that he no
empty,
his former residence
tаking
shape
and the
pills
he was
ber
business,
longer
place
at his former
medication, but,
of the heart
and color
where he is.
and that no one knows
returning
after
years
more than three
could not recall
from
she
an
in New York
Upon arriving
The IJ
any of the medications.
name of
of Homeland
Department
from the
officer
property in
(“DHS”)
found that she owned no
next
took Matadin’s sworn
Security
left,3 that
before she
she
statement,
that she
the United States
she indicated
which
interview,
any property
ed that she did not оwn
During
airport
Matadin stat-
—either
explain
delay
did not work
United States before
stances that would
in her
seventeen,
fin-
departing
age
that she
States,
return to the
United
citing
ished
in 1995 and indicated that she
school
Trudell,
Polymeris
States ex rel.
resuming
had no intention of
studies in the
(2d Cir.1931),
F.2d 730
284 U.S.
aff'd
States,4
Guya-
that she married a
(1932).
affirming no less than But the findings this case. the factual upon intrude cannot appellate court an any relevant factual has not agency made exclusively en- has Congress domain which discussed, and the the IJ findings. As agency.”). to an administrative trusted legal an standard applied BIA еrroneous a circumstance. not such rare This is in de- findings and making the factual in the de issue” determinative “[T]he Matadin had aban- termining whether whether the alien’s hearing was portation light of this LPR doned her status. visit “temporary a qualified as trip I factu- proof, the J’s erroneous standard Ahmed, at 612-13. abroad.” Guyana was not finding al Matadin was beset decision agency’s that the Given father meant solely care for her sick error, is whether we by legal IJ, that, Matadin according to the agen that the confidence can have assured by preponderance had not shown remand, would conclude Mata- cy, on solely to evidence she was abroad. temporary not a visit trip was din’s not a suit- father. This was care for sick Rather, If Mata- relevant, no such confidence. able, finding. can have We factual or remaining in Gu it for was whether inquiry din’s claimed reason the relevant factual clear, unequivocal, and trip by would seem “found accepted, could be yana were alleged facts un evidence that the convincing abroad qualify temporary as true.” deportation Ahmed, grounds [were] as F.3d at law. 286 our case See der 483; see Woodby, U.S. at 87 S.Ct. (‘When not length of the visit is (adopt- Dec. at 754 Huang, 19 I. & also N. re early event but instead fixed some “in Woodby deportation ing rule of possi an a reasonable upon event with lies a colorable hearings [against those with period of occurring a short bility of within the Ser- returning status] claim resident visit time, temporary what constitutes supporting de- must establish vice facts elapsed time terms of ‘cannоt be defined in clear, and con- unequivocal, portability visitor, of the Then the alone. intention added)). vincing (emphasis evidence” ”) determined, control.’ it can will when Polymeris v. ex rel. (quoting United States may not enforce [an Because “we (2d Cir.1931)); Trudell, legal stan by applying order agency’s] (The petitioners Polymeris, 49 F.2d adopt,” NLRB v. [agency] not dard the did within the themselves well “brought Care, Inc., 532 U.S. Kentucky River Cmty. lawfully once immigrants claimed status L.Ed.2d from a tem returning were admitted who (2001), may engage not ourselves we. *8 always “[t]hey abroad” whеn porary visit appropriate legal fact-finding under the they as soon as to come intended back whether Matadin to determine standard could,” their return “de timing the of but Jigme status. See had abandoned her health of [a the pended upon 524, condition DHS, 531-533 Wangchuck v. 448 died, and, after he (2d Cir.2006) husband” petitioner’s] was (holding that remand them to re time for “upon required Kentucky the River when necessary under his the settlement of low inappropriately main to attend to agency applied had Woodby, a matter of 385 Surеly was all see also proof); estate. this burden of short,” (remanding even 483 relatively at 87 S.Ct. might time which U.S. futility analysis, any ultimately delayed agency, was the without return though their inappropri- assigned an agency. when the years). several ately proof low burden of govern- the Matadin because she had remained out of ment); Cao He Lin v. United States the United States for year. over a I con- cf. DOJ, 391, (2d Cir.2005) (“To 428 F.3d cur judgment I agree because hypothetical assume a for basis the IJ’s the so; IJ erred in doing neither Huang determination, evеn one any case, based the rec- nor statute, other or regulation ord, role.”)- would usurp her supports The BIA’s the novel burden-shifting rule ap- conclusion that plied Matadin abandoned the inIJ this case. LPR status therefore cannot stand. Be- I part ways my colleagues, howev- cause requires “[t]he matter determining er, as to significance the of In re Huang. facts,” Gonzales,
the
186,
For the foregoing question petition presented by these cases is what for GRANTED; review is proof decision of the Government must sus- VACATED; the BIA is tain in deportation and the case is proceedings.”). How- ever, REMANDED further proceedings Huang, con- the BIA expressly decided sistent opinion. with this stay presented The issue previ- by this case. ously granted by this court is VACATED It beyond is cavil that reviewing “[w]hen as moot. the BIA’s interpretation of statutes that it administers, we apply the Chevron [U.S.A. WALKER, Circuit Judge, concurring in Inc. Council, v. Natural Inc., Res. Def. the judgment: U.S. S.Ct. 81 L.Ed.2d (1984) issue this case is how an immi- 694 ] principles.” Liang Shi Lin v. gration judge proceed should Justice, determin- U.S. Dept. ing (2d an whether alien a returning Cir.2007) (en banc). resi- However, dent. Specifically, question who of whether the Huang decision bears the burden in these circum- statutory interpretation involves or other stances: must show that wise triggers our Chevron analysis pres the alien status, abandoned her LPR or is ents more difficulty; commentators refer it incumbent the alien to show that no to inquiry, this which “must be made in such abandonment occurred? In In re deciding whether courts should turn to the Huang, (BIA 19 I. & N. 1988), Dec. 749 all,” Chevron framework Chevron the BIA decided by adopting “step zero.” Thomas W. Merrill & Kristin a two-step First, analysis. the alien Hickman, must E. Domain, Chevron’s 89 Geo. demonstrate “a claim colorable to re- (2001); L.J. see also Cass R. turning resident status.” Sunstein, Id. at If Zero, Step Chevron 92 Va. so, she does the burden (2006) shifts to the gov- 187, 191 L.Rev. (noting that these *9 ernment to “show that applicant the inquiries should currently constitute “the most deprived of her as a per- status lawful important and confusing questions” in the manent resident.” Id. The IJ fol- initially development doctrine). of Chevron In lowed procedure, this departed but then Huang, BIA, the citing 8 U.S.C. from it and shifted the burden back to noted that “the proving admissi-
94 riam) (25 months, parties’ to the according in ex- applicant the on bility generally is briefs). Secоnd, parents none of Matadin’s that held but proceedings,” clusion at in the States siblings resided when, or as to the shifted burden and, during her departure the time of her “a demonstrated case, applicant the in this parents of her lived stay Guyana, in both returning resident sta- to claim colorable addition, Guya- married a there. In at 754. I. & N. Dec. 19 Huang, tus.” visit, and did not man her nese the certainly possible to view Thus, it is her or possibility the of either explore even interpreting the one as Huang decision in returning to the U.S. while her husband Act, and and Naturalization Immigration Gonzales, 400 F.3d Guyana. Hana v. deter- Cf. that we must conclude therefore Cir.2005) (6th alien’s (finding 476 def- commands this decision mine whether attempting in to while abroad diligence analy- two-step the familiar under erence family, and ob- entry visas for secure sis of Chevron. reentry prior visa de- taining her own thorny of the reach I would not finding of intent to re- critical to parture, BIA’s deference the amount of what turn); Polymeris rel. v. States ex because, if even commands Huang decision (2d Cir.1931) Trudell, mat- review the that we could we assume aliens, visit when (finding temporary novo, Huang the decision I ter de believe an affidavit show- upon leaving, “executed for allo- framework proper articulates to return within six ing their intention in this case. of cating burden months,” the American Con- and contacted major- or briefs Nothing parties’ “it expired when period sul before that analysis in suggests ity opinion to re- they needed apparent became equally clear It is erroneous. Huang is years prior to For the two longer”). main the burden to shift decision that thе IJ’s any pursue she did not departure, her light erroneous Matadin was back to take a but she did study employment, or Huang. Guyana. And arrived in job after she U.S., spent she had leaving before is whether only remaining question The only five years twelve have found futile. We would be remand years in the U.S. evidence where, “the untainted futility e.g., is so conclusion the IJ’s support [of] support only evidence offered no realistic there is ‘overwhelming’ is Matadin’s finding temporary of a visit remand.” result on of a different possibility her to care for clаim that she left U.S. Justice, 471 Dep’t v. U.S. Xiao Ji Chen intended to return as soon father and Cir.2006). case, (2d In this his health. The extrinsic he recovered close, futility exceedingly however, health, her father’s evidence of aside from Mata- the evidence prior as most of suggest either a downturn does not trip was suggests (when testimony alleged- din’s Matadin September him) First, while the visit. or an temporary not a to care for ly left U.S. (when thirty- she re- dispositive, April not length stay upturn around U.S.). suggests that The documents Mata- strongly one month absence turned to hearing introduce at the attempted and abandonment temporary, is not din doctors) (letters trips. from Mr. Matadin’s on shorter has found based been her father was examined Fed.Appx. 628 indicate that Singh See v. Ashcroft (23 almost (9th Cir.2004) September opinion) pains heart (unpublished already left Matadin had one month after Ashcroft, Fed.Appx. months); Iqbal addition, entry interview (5th Cir.2003) cu- the U.S. per (unpublished *10 at Airport, INS JFK she stated that her father had had a second heart attack
on March roughly a month before she
left which would suggest that she
left, contrary to testimony, in spite of
her father’s ill health.
Nevertheless, the IJ improperly con-
cluded that Matadin bore the burden of
proof and the accompanying risk of non-
persuasion. It possible that a reason-
able factfinder could find the evidence as
to the nature of Matadin’s trip equivocal,
in which party case the who does not bear
the burden should prevail. As a
result, Matadin’s failure to per- introduce
suasive evidence her continuous intent
to return to the United States does not
necessarily claim, doom her just as a crimi-
nal defendant may prevail without adduc-
ing any evidence all. Accordingly, I
concur in judgment vacating the BIA’s
decision and remanding to agency
further proceedings.
Stacey HARTLINE, Plaintiff-
Appellant,
Anthony GALLO, Gagnon, Darren Mar- Donovan,
la Jim Sherry, Village of
Southampton Police Department, In-
corporated Village of Southampton,
Defendants-Appellees.
Docket No. 06-5309-cv.
United States Court of Appeals,
Second Circuit.
Argued: April 2, 2008.
Decided: Oct. notes Francis v. 442 required government prove aban (2d Cir.2006) (holding 138-39 clear, by donment unequivocal and con that, seeking deport when an LPR be vincing legal evidence. It was error not to cause a criminal conviction rendered her do so. inadmissible the time her status was adjusted, prove must II. Remand “clear, unequivocal conviction and con evidence”). Where, here, agency’s as deci vincing Because Matadin left error, sion is beset court country appeals “[a] a LPR ques and the sole tion, colorable, generally empowered is not which is is whether she to conduct inquiry being abandoned status de novo into the matter re abroad, the prov DHS bore the burden of viewed and to reach its own conclusions