                                                             [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________
                                                                 FILED
                            No. 08-14546                U.S. COURT OF APPEALS
                        Non-Argument Calendar             ELEVENTH CIRCUIT
                                                              MAY 12, 2009
                      ________________________
                                                           THOMAS K. KAHN
                                                                CLERK
                        Agency Nos. A45-715-344,
                              A45-715-345

KHALID F. USMANI,
SEEMA R. SIDDIQUI,
SAAD F. USMANI,
FATIMA USMANI,
HASSAN F. USMANI,

                                                                    Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                              (May 12, 2009)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Khalid Usmani, his wife Seema Siddiqui, and their three children, Saad

Usmani, Fatima Usmani, and Hassan Usmani, (collectively, the “petitioners”),

petition for review of the decision of the Board of Immigration Appeals (“BIA”)

affirming the immigration judge’s (“IJ”) order finding petitioners removable

pursuant to 8 U.S.C. § 1182 (a)(7)(A)(i)(I), because Usmani and his wife

abandoned their status as lawful permanent residents (“LPR”) of the United States

when petitioners were in Pakistan primarily for business purposes from January

2002 through January 2003.      On appeal, the petitioners argue that: (1) the IJ’s

determination that the petitioners had the intent to abandon their status as LPRs of

the United States was not supported by substantial evidence and applied the wrong

legal standard; and (2) the IJ erred in finding that Usmani’s abandonment of his

LPR status could be automatically imputed to his wife and children. After careful

review, we deny the petition.

      When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA expressly adopted and affirmed

the IJ’s decision and also provided additional analysis.    Thus, we review both

decisions.

      To the extent that the BIA’s or IJ’s decision was based on a legal

determination, our review is de novo.    D-Muhumed v. U.S. Att’y Gen., 388 F.3d
                                         2
814, 817 (11th Cir. 2004). The IJ’s and BIA’s factual determinations are reviewed

under the substantial evidence test, and we “affirm the [IJ’s] decision if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.

2005) (quotation omitted, alteration in original). “Under this highly deferential

standard of review, the IJ’s decision can be reversed only if the evidence compels a

reasonable fact finder to find otherwise.” Sepulveda v. U.S. Att’y Gen., 401 F.3d

1226, 1230 (11th Cir. 2005) (quotation omitted). The fact that evidence in the

record may also support a conclusion contrary to the administrative findings is not

enough to justify a reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.

2004).

         First, we find no merit in the petitioners’ argument that substantial evidence

does not support the conclusion that the government established by clear,

unequivocal, and convincing evidence that petitioners abandoned their LPR status.

An LPR is not regarded as seeking an admission each time he or she reenters the

United States unless, inter alia, the alien “has abandoned or relinquished [LPR]

status” or “has been absent from the United States for a continuous period in

excess of 180 days.” 8 U.S.C. § 1101(a)(13)(C)(i)-(ii). Any immigrant who, at the

time of application for admission, does not possess a valid entry document is

inadmissible. 8 U.S.C. § 1182 (a)(7)(A)(i)(I).
                                            3
       In the proceedings before the IJ, the INS had the burden of establishing

Usmani’s removability by clear and convincing evidence. Bigler v. U.S. Att’y

Gen., 451 F.3d 728, 732 (11th Cir. 2006); see also 8 U.S.C. § 1229a(c)(3)(A).

“[T]o qualify as a returning resident alien, an alien must have acquired lawful

permanent resident status in accordance with our laws, must have retained that

status from the time that [he] acquired it, and must be returning to an

unrelinquished lawful permanent residence after a temporary visit abroad.”

Bigler, 451 F.3d at 733 (quoting Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir.

2003) (brackets in original)). “[When] petitioner’s absence is not relatively short

in duration, petitioner must show ‘a continuous, uninterrupted intention to return to

the United States during the entirety of his visit.’” Id. (quoting Singh v. Reno, 113

F.3d 1512, 1514 (9th Cir. 1997)).              “Finally, petitioner’s desire to remain a

permanent resident, without more, is insufficient to demonstrate his intent;

petitioner’s intent must be supported by his actions.” Id.

       Substantial evidence supports the determination that the government met its

burden of establishing that the petitioners abandoned their LPR status.1 Indeed, the

       1
          We are likewise unpersuaded by the petitioners’ argument that the IJ failed to apply the
correct legal factors regarding LPR abandonment to the facts. The IJ specifically said, after
examining the various factors in determining abandonment of LPR status, that the “[g]overnment
sustained its burden of proving by clear, unequivocal, and convincing evidence” that the
petitioners had abandoned their LPR status. We recognize that the IJ used a higher standard --
that the government’s burden was by “clear, unequivocal, and convincing” evidence -- than the
one we usually use -- that the government has the burden of establishing removability by “clear
and convincing” evidence, Bigler, 451 F.3d at 732. However, because the government met the
                                                 4
petitioners’ nearly year long absence from January 2002 until January 2003 was

not relatively short in duration. Moreover, although the petitioners argue that their

trips to Pakistan were temporary and that they always intended to return to the

United States, the objective evidence shows otherwise. In January of 2002, the

petitioners returned to Pakistan with the stated expectation of being there for 60 to

90 days while a business merger was being completed. However, petitioners had

no realistic reason to believe that the merger would be completed within that time

frame because the merger negotiations had been ongoing since 2000 and was

dependent on finding financing, which had never come through.                          Because

petitioners thereafter remained in Pakistan for the remainder of 2002 and had

return tickets to Pakistan when they arrived in the United States in January 2003,

the petitioners did not show a continuous, uninterrupted intention to return to the

United States. Id. at 732.

       In addition, petitioners had few established connections with the United

States despite nearly five years of LPR status. The record shows that in the United

States they (1) did not enroll their children in school; (2) emptied their bank

account; and (3) never owned property. Although petitioners’ subjective intent

was to retain their LPR status, their actions did not support their intent. Id. at 733.



higher burden imposed by the IJ, it necessarily also met the burden to show removability by
“clear and convincing” evidence.
                                                 5
In short, the evidence does not compel a reasonable factfinder to conclude that the

petitioners demonstrated a continuous, uninterrupted intention to return to the

United States during the entirety of their January 2002 trip to Pakistan.        Id.;

Sepulveda, 401 F.3d at 1230.

      We also reject the petitioners’ claim that the IJ erred in finding that

Usmani’s abandonment of his LPR status could be automatically imputed to his

wife and children. As an initial matter, the petitioners are incorrect in their claim

that the IJ imputed Usmani’s abandonment of LPR status onto the wife. The IJ

concluded that both Usmani and his wife had abandoned their LPR status.            In

addition, because the facts dealing with Usmani’s and his wife’s stay in Pakistan

were so interrelated, there was no need for the IJ to use a different analysis to

determine that they each abandoned their LPR status.

      We have not considered the permissibility of imputation of abandonment of

LPR status onto minor children, but the BIA has in Matter of Zamora, 17 I. & N.

Dec. 395 (1980), and the U.S. Supreme Court has established a two-step process

for reviewing an agency’s interpretation of a statute which it administers. Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43

(1984).   First, if Congressional purpose is clear, then interpreting courts and

administrative agencies “must give effect to the unambiguously expressed intent of

Congress.” Id. at 842-43. A second level of review, however, is triggered when
                                          6
“the statute is silent or ambiguous with respect to the specific issue.” Id. at 843. If

Congress explicitly leaves a gap in a statute for an agency to fill, “there is an

express delegation of authority to the agency to elucidate a specific provision of

the statute by regulation.”   Id. at 843-44.    A court may not substitute its own

construction of a statutory provision for a reasonable interpretation by an

administrating agency. Id. at 844. Moreover, the authority of the executive branch

to fill gaps is especially great in the context of immigration policy.       I.N.S. v.

Aguirre-Aguirre, 526 U.S. 415, 425 (1999).           An agency’s interpretation is

reasonable and controlling unless it is “arbitrary, capricious, or clearly contrary to

law.” Alabama Power Co. v. Fed. Energy Regulatory Comm’n, 22 F.3d 270, 272

(11th Cir. 1994).

      Congress did not directly speak on the issue of when petitioners

abandonment of LPR status can be imputed to their minor children. See 8 U.S.C.

§ 1101(a)(13)(C)(i)-(ii). Because the statute is silent on the issue, Congress has

left a gap in the statutory scheme that could be filled by the BIA. In Matter of

Zamora, the BIA held that the voluntary and intended abandonment of LPR status

by the parent of an unemancipated minor child is imputed to the child who is

deemed also to have abandoned his LPR status. Matter of Zamora, 17 I. & N. Dec.

at 396.



                                           7
      The Sixth Circuit has found imputation from a parent to a child to be

unreasonable in certain circumstances, such as where the imputation involves

unlawful conduct. In Singh v. Gonzales, 451 F.3d 400, 409 (6th Cir. 2006), the

Sixth Circuit determined that it was unreasonable for the BIA to impute fraudulent

conduct from a parent to a child. However, the court specifically distinguished the

imputation of abandonment of LPR status by the BIA in Matter of Zamora, noting

that “imputing the intent to engage in a perfectly law act -- such as leaving the

United States to return to one’s native county -- is far different from imputing the

intent to commit fraud.” Id. at 407.

      On the record here, we conclude that the BIA’s interpretation of the statutory

scheme in Matter of Zamora was reasonable, as the record reveals no evidence that

the decision was arbitrary, capricious, or manifestly contrary to Congressional

intent. Alabama Power, 22 F.3d at 272. Moreover, in this case, the IJ based the

children’s abandonment on their parents’ lawful desire to return to Pakistan, unlike

in Singh, 451 F.3d at 407, where the petitioners abandoned their LPR status due to

fraud. Accordingly, there was no error in relying on Matter of Zamora to impute

the petitioners’ abandonment of their LPR status to their accompanying children.

      PETITION DENIED.




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