Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1973)

MEMORANDUM^* 

Maria de Lourdes Sa Pereira petitions for review of the Board of Immigration Appeals' (BIA) decision finding her deportable. The BIA concluded that at some point during her stay abroad Sa Pereira abandoned her intention to return to the United States. After examining the record as a whole, we cannot say that this conclusion is not supported by substantial evidence.

BACKGROUND

Maria de Lourdes Sa Pereira was born in Oporto, Portugal, on January 31, 1944. On January 27, 1973, she was admitted to the United States as a permanent resident and thereafter resided in this country with her husband until December 1974. At that time, due to marital discord, Sa Pereira and her husband left this country to return to Portugal, hoping to resolve their marital difficulties.

Within one year after December 1974, Sa Pereira inquired at the United States Consulate in Oporto, Portugal, as to the procedure for returning to the United States. She alleges that she emphasized to a representative of the Consulate that she and her husband had been absent from the United States for less than one year, and that they had left the United States without intending to abandon their permanent residence. She further stated that they had every intention of returning to the United States within one year. According to Sa Pereira, the consular officer advised her that because more than one year will have elapsed before the date of her intended return to the United States, her green card would not be valid for readmission. Sa Pereira remained in Portugal until 1980. She returned to the Consulate in December 1976 and was once more given the same advice by the same consular official.

In 1980, Sa Pereira and her husband became landed immigrants in Canada. Sa Pereira states that they accepted this status only because they were advised by Canadian officials that they would not otherwise be admitted into Canada. In July 1982, Sa Pereira proceeded to the United States with her two children, joining her husband who had returned to this country in June 1981.

ANALYSIS

The BIA concluded that (1) Sa Pereira's absence from the United States was more than a temporary visit abroad; and (2) she abandoned her intention to return to the United States sometime after her departure from this country. Accordingly, Sa Pereira does not qualify for "special immigrant status"¹  and is subject to deportation.

Sa Pereira now contends that the BIA erred in finding that she abandoned her intent to return to this country.²  Because the BIA's conclusions concerning an alien's intent are essentially factual, we review them for substantial evidence. Chavez-Ramirez v. I.N.S, 792 F.2d 932, 934-35 (9th Cir. 1986).

8 U.S.C. § 1101(a) (27) (A) provides that a lawfully admitted permanent resident has "special immigrant" status when returning from a "temporary visit abroad." 22 C.F.R. Sec. 42.22(a) (1988) provides further that to qualify as a "special immigrant" under Sec. 1101(a) (27) (A), a returning alien must establish that: (1) she had permanent resident status at the time she departed from the United States; (2) she departed with the intent to return and never abandoned that intent; and (3) she is returning from a temporary visit abroad. In Chavez-Ramirez, we articulated a standard for determining when a visit abroad is temporary:

a permanent resident returns from a "temporary visit abroad" only when (a) the permanent resident's visit is for "a period relatively short, fixed by some early event," or (b) the permanent resident's visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time. If as in (b), the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a "temporary visit abroad" only if the alien has a continuous, uninterrupted intention to return to the United States during the entirety of his visit.

792 F.2d at 937. We went on to list some of the factors that a court could use in determining whether an alien harbored a continuous, uninterrupted intention to return: (1) alien's family ties, property holdings, and business affiliations within the United States; (2) duration of the alien's residence in the United States; (3) the alien's family, property and business ties in the foreign country; and (4) whether the alien's conduct while abroad constitutes an affirmative indication that he intends to remain in the foreign country. Id.

A review of the record indicates that there is substantial evidence supporting the BIA's conclusion that Sa Pereira abandoned her intent to return to the United States. Sa Pereira did not attempt to return to the United States for nearly nine years. See United States ex rel. Polymeris v. Trudell, 49 F.2d 730, 732 (2nd Cir. 1931), aff'd, 284 U.S. 279 (1932) (temporary visit not defined in terms of elapsed time alone but length of time is a factor). During her time abroad, she relinquished her apartment in New Bedford, Massachusetts, sold the family car, and donated the family furniture to charity. Her contention during the INS proceedings that she did not return to this country at an earlier date due to her inability to raise travel expenses is contradicted by her family's immigration to Canada in 1980. Moreover, while in Canada, she visited the United States but made no attempt to claim her permanent resident status.

Sa Pereira contends, however, that her failure to seek to reenter the United States at an earlier time is due to the misrepresentations of the consular official at the Consulate in Oporto, Portugal. In fact, the information given to Sa Pereira by the official was accurate: the green card she possessed was valid for only one year and would not, therefore, have served to allow her reentry into the United States. The official did not, however, advise Sa Pereira that she was eligible to receive a returning resident alien visa (allowing re-entry within a two-year period) under 8 U.S.C. § 1203(b).³  The consular official's failure to properly advise Sa Pereira, however, is not enough to vitiate the BIA's finding that Sa Pereira did not maintain a continuous, uninterrupted intent to return to the United States during the remaining eight years of her stay abroad.

AFFIRMED.