By Richard M. Green

In 2001, Salar Khoshfahm immigrated to the United States from his native Iran with his parents and siblings.  Khoshfahm was thirteen years old.  A few months after immigrating to the United States the Khoshfahm family returned to Iran to sell the property they owned to raise money to live in the United States.  A week after they returned to Iran, the September 11 attacks occurred, making travel to and from the United States Difficult.  The Khoshfahm family always intended to return to the United States, but as they prepared to return, Khoshfahm's father was diagnosed with a heart condition which prevented him from traveling.  Khoshfahm also was prevented from leaving Iran because of compulsory military service.

On February 28, 2007, a month after turning eighteen and after obtaining a waiver of the military service requirement, Khoshfahm arrived at the San Francisco International Airport.  He presented his Iranian passport, green card, and told the immigration officer that he had been out of the United States for six years.  Lawful Permanent Residency is not so permanent. A green card holder runs the risk of abandoning their residency if they fail to maintain a residence in the United States and return from a trip abroad that is "relatively short". 

After hearing that Khoshfahm had been out of the US for six years, the immigration officer referred Khoshfahm to the Immigration Court for review of their finding of inadmissibility as an alien who had abandoned his permanent residence and was not in possession of a returning resident visa.  The Immigration Judge found that Khoshfahm had indeed abandoned his residency and that he was inadmissible.  The Board of Immigration Appeals summarily affirmed, and Khoshfahm sought review of the government's decision before the Ninth Circuit Court of Appeal in San Francisco. 

When an alien that has a colorable claim to returning resident status, the government has the burden of proving that the alien is not eligible for admission to the United States as a returning resident.  In Khoshfahm's case the court concluded that the government had not carried its burden.  Since from the day of his departure to his eighteenth birthday, Khoshfahm was an unemancipated minor, the court looked to the intent of Khoshfahm's father to return.  Since Khoshfahm submitted evidence of his father's desire to return to the United States and the difficulties encountered by of the 9/11 terrorist attacks and his health, and that subsequent to the commencement of removal proceedings that Khoshfahm's father return to the United States and was admitted as a returning resident, the court concluded that Khoshfahm had not abandoned his residency.  Since Khoshfahm returned to the US shortly after turning eighteen and after obtaining a waiver from military service in Iran, his intent to return was clear. 

The court held that Khoshfahm is a lawful permanent resident and not removable.