March 24, 1977
77-14 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Effect of Presidential Pardon on Aliens Who Left the Country to Avoid Military Service
You have asked us to examine the question of whether the Presi dent’s Proclamation and accompanying Executive order granting a pardon to all those who violated the Military Selective Service Act between August 4, 1964, and March 28, 1973, will have the effect of removing the exclusion of aliens who departed from or remained out side the United States to avoid or evade training or service in the Arm ed Forces. W e agree with the Immigration and Naturalization Service (INS) that the pardon should be given that effect. We also agree with INS that whether an alien seeking readmittance should be regarded as a permanent resident alien returning from a temporary visit abroad, is a question of fact that should be decided on a case-by-case basis. But we believe that the terms of the statute and the case law construing it permit more flexibility in making this determination than the INS appears to suggest. Finally, we do not believe that an expatri ated citizen may properly be regarded as an alien lawfully admitted for permanent residence.1
I. Applicability of the Pardon to 8 U.S.C. § 1182(a)(22) An alien is excluded from entry into the United States if he or she is within any of the classes enumerated in 8 U.S.C. § 1182(a).2 Among the aliens excluded under this provision are: Aliens who are ineligible to citizenship, except aliens seeking to enter as nonimmigrants; or persons who have departed from or w ho have remained outside the United States to avoid or evade training or service in the armed forces in time or war or a period declared by the President to be a national emergency, except aliens
1 T h e A tto rn ey G eneral subsequently approved these conclusions. 1 T h e Im m igration and Nationality A ct, 66 Stat. 166 (1952) codified at T itle 8, United S tates C ode.
34 who were at the time of such departure nonimmigrant aliens and who seek to reenter the United States as nonimmigrants. 8 U.S.C. § 1182(a)(22). Proclamation 4483, issued by the President on January 21, 1977, grants a pardon to everyone “who may have committed any offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service A ct.” 13 Weekly Comp. Pres. Doc. 90. The Procla mation does not on its face purport to pardon the “offense” of depart ing from or remaining outside the United States to avoid or evade military training or service in the Armed Forces and thereby to remove the sanction of exclusion from the United States. Executive Order 11967, also issued by the President on January 21, 1977, implements the pardon by, inter alia, instructing the Attorney General to seek dismissal of indictments for offenses covered by the pardon. Id. Section 3 of the order provides: Any person who is or may be precluded from reentering the United States under 8 U.S.C. 1182(a)(22) or under other law, by reason of having committed or apparently committed any violation of the Military Selective Service Act shall be permitted as any other alien to reenter the United States. The Executive order and the Proclamation together evince a clear intent to remove the exclusion imposed by 8 U.S.C. § 1182(a)(22). Because the Proclamation itself only mentions violations of the Military Selective Service Act, and the Executive order by its terms seems to lift the exclusion only where it would otherwise apply “by reason o f ’ an underlying violation of that Act, it would appear that the intent was to lift the exclusion only derivatively by removing a consequence of having violated the Military Selective Service Act. However, as ex plained below, 8 U.S.C. §1182(a)(22) was probably not intended to apply to any conduct that is not also unlawful under the Selective Service Act. The pardon therefore will have the same effect whether it operates derivatively or directly—Le., by pardoning the separate “of fense” created by 8 U.S.C. § 1182(a)(22). See footnote 8, infra. The present § 1182(a)(22) was first enacted in 1944 in an A ct that had only one other section: the predecessor to the recently repealed 8 U.S.C. § 1481(a)(10),3 which provided that any person who was a national o f the United States would lose his nationality by departing from or remaining outside the jurisdiction of the United States in time of war or during a national emergency for the purpose of avoiding or evading training and service in the military forces of the United States. 58 Stat. 746. It is evident that the two sections of the 1944 Act merely applied different sanctions for the same underlying conduct of leaving
J 8 U.S.C. § 1481(a)(10) was repealed by Pub. L. No. 94-412, 90 Stat. 1258 (1976).
35 or remaining outside the country to avoid military training or service.4 Indeed, by virtue of the interaction between the two provisions, a U.S. national who left the country to avoid or evade training or service was expatriated and, as an alien, would then be excluded from entry into the United States. See, Jolley v. INS, 441 F. 2d 1245, 1255 n. 17 (5th Cir. 1971). T he Attorney General described the purpose of the expatriation section of the bill in his letter to Senator Russell: The files of this Department disclose that at the present time there are many citizens of the United States who have left this country for the purpose of escaping service in the armed forces. While such persons are liable to prosecution for violation of the Selective Service and Training A ct of 1940, if and when they return to this country, it would seem proper that in addition they should lose their United States citizenship. Persons who are unwilling to per form their duty to their country and abandon it during its time of need are much less w orthy of citizenship than are persons who become expatriated on any of the existing grounds. S. Rep. No. 1075, supra. The Attorney General’s statement that persons subject to expatriation under the bill would be “liable to prosecution for violation of the Selective Service and Training Act of 1940” if and when they returned, indicates that the expatriation provision was to apply where the under lying conduct also violated that Act. His description of the sanction of expatriation as being “in addition” to criminal penalties for the conduct further supports this view.5 The view that the expatriation section of the 1944 Act applied only to conduct that gave rise to liability under the Selective Service and Training A ct also is reflected in the Supreme Court’s opinion in Kenne dy v. Mendoza-Martinez, 372 U.S. 144 (1963), which held that the expatriation provision was penal rather than regulatory in nature and was therefore unconstitutional because it automatically deprived a citi zen o f his nationality without the procedural protections required in a criminal trial. One of the factors the Court cited as ordinarily being useful in determining whether a sanction is penal or regulatory—and
* In a letter dated February 16, 1944, to Senator Russell, Chairm an o f the Senate C om m ittee on Im m igration, the A tto rn ey G eneral stated: I invite y o u r attention to th e desirability o f enacting legislation w hich w ould provide (1) for th e expatriation o f citizens o f the United States w ho in tim e o f w ar or during a national emergency leav e the U nited States o r remain outside th ereo f for the purpose o f evading service in- the arm ed forces o f the U nited States, and (2) for the exclusion fro m the United States o f aliens who leave this country fo r the above- m entioned purpose. S. Rep. N o. 1075, 78th C ong., 2d Sess., 2 (1944). [Emphasis added]. 5 T h e A tto rn ey G en eral’s description also indicates that the bill was intended to close a gap in th e coverage o f existing crim inal provisions by imposing a sanction upon those w h o had rem oved them selves beyond the crim inal jurisdiction o f the U nited States. See 90 C ong. Rec. 7628-29 (1944).
36 one that suggested that the expatriation provision was penal in nature— was “whether the behavior to which it applies is already a crime.” Id. at 168.® Justice Brennan explicitly stated in his concurring opinion that it was obvious that the expatriation provision “does not reach any conduct not otherwise made criminal by the selective service laws.” Id. at 191 n. 5. Because the expatriation section and the section that was the predecessor of the present 8 U.S.C. § 1182(a)(22) applied to the same underlying conduct, it follows that the latter provision similarly should be regarded as intended to apply only to conduct that also gives rise to criminal liability under the Military Selective Service Act.7 In our opinion, the President’s Proclamation of pardon of offenses arising under the Military Selective Service Act may properly be given the effect intended in Section 3 of Executive Order 11967 of lifting the exclusion from the United States which may result from the same conduct. The leading case regarding the effect of a Presidential pardon is Ex parte Garland, 71 U.S. 333 (1866). In 1865, Congress enacted a statute providing that no person could be permitted to practice in Federal court unless he took an oath asserting that he had never voluntarily borne arms against the United States or given aid or comfort to enemies of the United States. In holding that a Presidential pardon granted to a Confederate sympathizer for all offenses committed during the Rebel lion had the effect of removing the bar imposed by the statute, the Court stated: A pardon reaches both the punishment prescribed for the offense N and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that
• T h e C ourt did note that the elements o f the “crim e” created by the expatriation provision and that created by the Selective T raining and Service A c t w ere not identical, 372 U.S. at 167 n. 21, but this observation appears to have been based on the conclusion that the Im m igration and Nationality A ct contained an additional elem ent not found in the o ther A c t—i.e„ departing from o r remaining outside the country for the purposes declared to be unlawful. T he C ourt did not suggest that expatriation w ould occu r even if the underlying conduct did not constitute a violation o f the Selective T raining and Service A ct. Also, the expatriation section, as reenacted in the Im m igration and N ationality Act, provided that failure to com ply w ith any provision o f the com pulsory service law s o f the United States raised the presum ption that a citizen departed o r rem ained outside the country for the purpose of evading o r avoiding service. 8 U .S.C. § 1481(a)(10). This underscores the nexus to crim inal conduct. ’ Section 11 o f the Selective T raining and Service A c t o f 1940, 54 Stat. 894, w hich contained the crim inal provisions o f that A ct, is in all m aterial respects identical to the principal provision defining offenses and penalties under current law. See 50 U.S.C. App. § 462(a). Thus, the present connection betw een the exclusion provision and the Selective Service A c t appears to be as direct as it was in 1944.
37 in the eye of the law the offender is as innocent as if he had never committed the offense. Id. at 380.® See also, Knote v. United States, 95 U.S. 149, 153 (1877). The language in E x parte Garland is now generally believed to be too sweeping. E. Corwin, The President: Office and Powers, 1787-1957 (1957), at 166— 67; W. H. Humbert, The Pardoning Power of the President (1941), at 76-78. For example, the Court held in Carlesi v. New York, 233 U.S. 51 (1914), that a Presidential pardon of a Federal offense did not prevent a State court from considering that offense for purposes of sentencing the defendant under a second offender statute. The Court was careful to note, however, that the N ew York statute did not purport to authorize additional punishment for the pardoned offense, but only prescribed penalties for the later offense taking into account the character of the offender, including his past conduct. Id. at 57. In fact, E x parte Garland may itself be viewed as a case in which the disability actually was imposed as a penalty rather than as a regulation of the practice of law. Humbert, supra, at 78 n. 95.® The President’s constitutional authority to pardon offenses carries with it the power to release all penalties and forfeitures that accrue from the offenses. Osborn v. United States, 91 U.S. 474 (1875); 36 Op. A. G. 193 (1930). Thus, whether a pardon removes a particular disability depends on whether the statutory provi sion is thought to impose a penalty for an offense or merely to pre scribe a qualification for a Governm ent benefit. 31 Op. A. G. 225, 226- 27 (1918). See also 39 Op. A. G. 132, 134-35 (1938); 36 Op. A. G. 193 (1930); 22 Op. A. G. 36 (1898). Many o f the grounds for exclusion provided by 8 U.S.C. § 1182(a) could properly be regarded as establishing qualifications for entry, rather than punishment for past acts, and as such they would presum ably be unaffected by a Presidential pardon. This, however, cannot be said o f the ground for exclusion in 8 U.S.C. § 1182(a)(22). The compan ion provision for expatriation of a citizen who departed or remained outside the country to avoid or evade military training or service was specifically found to be penal rather than regulatory in character, in Kennedy v. Mendoza-Martinez, supra, after an exhaustive consideration of the language and legislative history of the 1944 Act and its predeces sors. The evidence of a punitive intent in the legislative history and antecedents o f the 1944 Act apply equally to the corollary provision for the exclusion of aliens now contained in 8 U.S.C. § 1182(a)(22). Similar ly, the various factors the Court identified as suggesting that the sanc- * T h e four dissenters contended th a t the A c t was m erely intended to establish qualifica tions for the practice o f law before Federal courts. In their view , the pardon could relieve the beneficiary from the penalty the law inflicted for his offense, but not from m eeting ap p ro p riate tests o f fitness to engage in the practice o f a profession. 71 U.S. at 396-97. • T his interpretation o f E x parte G arland is supported by the C o u rt’s alternative holding th at the professional disqualification was intended by C ongress as punishm ent for past acts and therefore w as unconstitutional as ex post facto legislation. 71 U.S. at 376-380.
38 tion of expatriation was punitive on its face also apply to the sanction of exclusion of aliens who engage in the very same conduct. 372 U.S. at 168-69. Exclusion from the United States certainly involves an affirma tive restraint, and it is analogous to the devices of banishment and exile that “have throughout history been used as punishment.” Id. at 168 n. 23. From the nature of the provision it seems evident that exclusion may be imposed only upon a finding of scienter, see, e.g., Riva v. Mitchell, 460 F. 2d 1121 (3d Cir. 1972); Jolley v. INS, 441 F. 2d 1245 (5th Cir. 1971), and its operation promotes the traditional aims of punishment—retribution and deterrence. The other factors mentioned by the Court are also satisfied here. Because it appears that Congress has imposed the sanction of exclu sion as additional or alternative punishment for conduct that also vio lates the Military Selective Service Act, rather than as a regulatory measure to establish the qualifications of aliens who enter the United States, we agree with the conclusion of the INS that the President has the constitutional power to lift that exclusion as a consequence of his grant of a pardon for violations of the Military Selective Service A c t.10 II. Authority for Regarding an Expatriated Citizen as a Lawful Permanent Resident. INS suggests that a United States citizen who voluntarily relin quished his citizenship can be regarded as an alien lawfully admitted for permanent residence. On its face, this seems to be a strained result, at least as it applies to a native-born citizen. The term “lawfully admitted for permanent residence” is defined under the Immigration and Nation ality Act to mean “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” 8 U.S.C. § 1101(a)(20). A native-born citizen would never have been accorded the privilege of residing permanently in the United States “as an immigrant,” so it is difficult to see how he could be thought to revert to the status of permanent resident alien by renounc ing his citizenship. A naturalized citizen presumably has been accorded the privilege of residing permanently in the United States as an immi 10 In our view , the clear punitive purpose o f 8 U.S.C. § 1182(a)(22) m ight well support a conclusion that the section itself defines an offense that may be pardoned by the President, w ithout reference to parallel provisions in the M ilitary Selective Service A ct. In Kennedy v. Mendoza-Martinez, the C ourt stated that “C ongress has plainly em ployed the sanction o f deprivation o f nationality as a punishm ent—/o r the offense o f leaving or remaining outside the country to evade military service— w ithout affording the procedural safeguards guaranteed by the Fifth and Sixth A m endm ents.” 372 U.S. 165-66 [emphasis added]. L ong before the Suprem e C ourt’s decision in Kennedy v. Mendoza-Martinez, A cting A ttorney G eneral John W. D avis advised the Secretary o f the N avy th at an earlier version o f the expatriation statute created an ofTense and that the disabilities imposed w ere therefore lifted by an unconditional pardon. 31 Op. A. G . 225, 231-32 (1918). T h e underlying “offense” o f departing from o r rem aining outside the U nited States to avoid m ilitary service under 8 U.S.C. § 1182(a)(22) is the same, and it could therefore be argued that the penalty o f exclusion can be lifted by a pardon intended to have this result. But in view o f the conclusion reached in the text, w e need not decide here w hether 8 U.S.C. § 1182(a)(22) itself states a pardonable offense. 39 grant at some point prior to his naturalization. But, by the terms of 8 U.S.C. § 1101(a)(20), an alien permitted to reside permanently in the United States may possess that immigrant status only as long as the status does not change. W hen a permanent resident alien becomes a naturalized citizen, he loses his status as an alien altogether. Thus, the language of 8 U.S.C. § 1101 (a)(20) does not appear to contemplate that the initial permanent resident status can be resurrected once it has been lost. As the INS memorandum points out, the Board of Immigration Appeals held in Matter o f Vielma-Ortiz, 11 I&N Dec. 414 (1965), that a naturalized citizen who had been admitted for permanent residence prior to naturalization reverted to the status of permanent resident alien when he automatically lost his citizenship by voting in a foreign elec tion.11 The Board specifically noted that the expatriating act of voting in a Mexican election “had nothing to do with the continuance of the status as a lawful permanent resident of the United States,” Id. at 416, presumably meaning that the individual’s act of voting in the particular case did not manifest an intention to abandon his actual residence in the United States.12 It is evident that the Board interpreted the phrase “such status not having changed” in 8 U.S.C. § 1101(a)(20) to mean only that the alien must not have abandoned his actual residency in the United States. We do not believe that this construction is appropriate in light of subse quent developments. In Gooch v. Clark, 433 F. 2d 74, 79 (9th Cir. 1970), the court held that “ the definition [in 8 U.S.C. § 1101 (a)(20)] refers not to the actuality o f one’s residence but to one’s status under the immigration laws” [emphasis in original]. The status involved is that of an alien lawfully admitted for permanent residence. A person ceases to be an alien altogether when he becomes a naturalized citizen, and his status as an alien therefore does not remain unchanged as required by 8 U.S.C. § 1101(a)(20).13 It also should be noted that the Board’s decision in Matter o f Vielma- Ortiz preceded the Supreme Court’s decision in Afroyim v. Rusk, 387 U.S. 253 (1967), which held that citizenship may be forfeited only
11 A b rief passage in Justice B rennan's concurring opinion in Kennedy v. Mendoza- M artinez lends som e support to the result in Vielma-Ortiz. H e observed that the G o v e rn m ent could argue th at a citizen w ho fled the country to avoid m ilitary service, “although expatriated, is a resident alien subject to com pulsory m ilitary service.” 372 U.S. at 195 n. 7. T h e evidence established that th e appellant obtained a v oter registration card and voted in a M exican election primarily to further his business dealings there and that he intended to retu rn to his family in th e U nited States on each occasion that he w ent to M exico. ’’ T h e Suprem e C o u rt later stated in Saxbe v. Bustos, 419 U.S. 65, 72 (1975), that it “ read the A c t as did the N inth C ircuit in the Gooch case to mean that the change in status w hich C ongress had in mind was a change from an im m igrant lawfully adm itted for perm anent residence to the status of a nonimmigrant pursuant to 8 U.S.C. § 1257” [empha sis in original]. T his passage only speaks o f tw o different statutes that an alien may occupy. It does not suggest that a person m ight com e w ithin 8 U.S.C. § 1101(a)(20) if he w as not even an alien for a period o f time.
40 though a voluntary act of relinquishment. The decision in Vielma-Ortiz may have stemmed from a desire to soften the harsh impact of automat ic expatriation for voting in a foreign election. The decision in Afroyim v. Rusk removes this pressure for a liberal construction of the statute; the requirement that a person who has renounced his citizenship must assume the position of an alien and apply anew for an immigrant visa or permanent resident status is now but a necessary consequence of a voluntary act. Also, as a practical matter, it would probably be rare that a person who voluntarily renounced his citizenship,14 with all the severing of ties that implies, would nevertheless be thought to have retained a permanent residence in the United States to which he might now be returning from a “temporary” visit abroad. See Part III, infra. Therefore, little would probably be gained by regarding an expatriated citizen as an alien lawfully admitted for permanent resident. For the foregoing reasons, it is our opinion that the result in Vielma- Ortiz should not be followed with respect to persons covered by the pardon who have renounced their citizenship.15
III. Standard for Determining W hether an Alien is Returning from a Temporary Visit Abroad. We agree with the position of INS that the determination whether an alien seeking to enter the United States is “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit aboard” under 8 U.S.C. § 1101(a)(27)(A) should in general be determined on a case-by-case basis. Judicial and administrative decisions arising under this section have generally looked to the facts o f the
“ T he IN S m em orandum , at pp. 10-11, notes that those w ho have been effectively expatriated either applied for and obtained naturalization in a foreign c o untry or form ally renounced their citizenship. 8 U.S.C. §§ 1481(a) (1) and (6). A form al renunciation will usually be unam biguous in regard to subjective intent to relinquish citizenship. See, e.g., Jolley v. IN S , 441 F. 2d 1245 (5th Cir. 1971). But it appears that even an application for and obtaining o f naturalization in a foreign country o r taking an oath o f allegiance to a foreign c o untry will not be regarded as an effective act o f expatriation unless it is accom panied by an intent to abandon United States citizenship. United States v. Matheson, 532 F. 2d 808 (2d Cir. 1976); King v. Rogers, 463 F. 2d 1188 (9th Cir. 1972). “ Section 3 o f E xecutive O rder 11967 provides that any person precluded from reen ter ing the United States under 8 U.S.C. § 1182(a)(22) shall be perm itted “ as any o th er alien” to reenter the United States. A n expatriate w h o left the country to avoid m ilitary service o r training is barred from reentry under this section. H ow ever, because such an individu al could not be regarded as a returning resident alien, the provision for him to reen ter “as any o ther alien” should be construed to mean that he m ust reenter in the same m anner as an alien w h o no longer has the status o f an alien law fully adm itted for perm anent residence. H e must therefore satisfy all entry requirem ents, including applicable quota limitations.
41 particular case to determine whether a given absence was temporary.16 It would be a departure from the usual approach in this area to follow Option A contained in the draft statement prepared by INS for the A ttorney General. Under Option A, any alien covered by the pardon who had been lawfully admitted for permanent residence would auto matically be regarded to be returning from a temporary visit abroad and therefore eligible for a waiver o f documentation requirements under 8 U.S.C. § 1181(b). Option B proposed by IN S would require a case-by-case determina tion for each alien, and it further states that it “is likely that most aliens in this category will be precluded by the length and circumstances of their absence from qualifying as returning permanent residents.” This is apparently based on INS’ conclusion (at p. 12 of Commissioner Chap man’s memorandum) that the rule established by the cases is that lengthy absence without an explanation amounting to a legal excuse results in loss of returning resident status. We believe INS takes too narrow a view of the concept of a “temporary visit abroad,” especially in placing determinative emphasis on the duration of the visit and apparently attaching little significance to the intent of the alien.17 T he cases considering the question of what constitutes a temporary visit abroad are not entirely consistent; the most important factor that emerges from the cases, however, is whether the alien had a continuing intent to return to the United States —animus revertendi. See, M atter o f Kane, I&N, Interim Dec. #2371 (April 1, 1975), at 6-8.18 As stated in the most frequently cited case in this area, “the intention of the depart ing immigrant must be to return within a period relatively short, fixed
16 8 U.S.C. § 1181(b) provides th a t the A ttorney G eneral m ay w aive the docum entary requirem ent for returning resident im m igrants “ in such cases o r in such classes o f cases and u n d e r such conditions as m ay be by regulations prescribed.” T he reference to “classes o f cases" m ight suggest th a t a case-by-case determ ination is not absolutely necessary. B ut the statute refers to classes o f “ returning resident im m igrants"; in ord er to be included in such a class in the first place, an alien m ust be returning from a tem porary visit abroad. See 8 U.S.C. § 1101(a)(27)(A). A n individualized determ ination w ould seem to be required on this point. 17 A t one tim e, regulations im plem enting the w aiver o f the docum entary requirem ent in 8 U.S.C. § 1181(b) provided that a w aiver w ould be considered only if the tem porary visit ab ro ad w as for 1 year or less. See, Tejeda v. INS, 346 F. 2d 389, 391 (9th Cir. 1965). T h e regulation w as am ended on M ay 7, 1969, 29 F ed. Reg. 6002, and it no longer contains th e 1-year lim itation. See 8 C F R 242.7a. W aiver is now perm itted for tem porary visits o f longer duration. 18 In this regard, it m ay be useful to consider a tem porary visit abroad as being in c o ntradistinction to a perm anent visit. Cf. 8 U.S.C. § 1101(a)(31). V iew ed in this light, reference to a tem p o rary visit m ay be only a label for the m ore probing question o f w h e th e r th e alien has retained his essential ties to the United States o r abandoned them. M any perm anent resident aliens w h o left the c o untry to avoid m ilitary service no doubt retained clo ser personal ties to the U nited States than to the c o u n try to w hich they fled.
42 by some early event.” United States ex rel. Lesto v. Day, 21 F. 2d 307, 308-09 (2d Cir. 1927).19 Other cases are to the same effect.20 For example, in Santos v. INS, 421 F. 2d 1303 (9th Cir. 1970), the court held that a permanent resident alien who left Guam after 12 years to seek other employment was not returning from a temporary visit abroad when he sought entry in San Francisco some 5 years later. The court noted the Special Inquiry Officer’s finding that the alien had left with no definite intention either of staying away permanently or of returning, but rather with a purpose to let future events run their course. Thus, there was no evidence of animus revertendi. Similarly, in United States ex rel. Alther v. McCand- less, 46 F. 2d 288, 290-91 (3d Cir. 1931), the court held that the mere absence of an intent to remain abroad permanently was not sufficient if there was no evidence of an affirmative intent to return to the United States. It is important to note, however, that the court considered the alien’s intent in determining whether his visit abroad was temporary even though he had been out of the country for more than 8 years. See also, Gamero v. INS, 367 F. 2d 123 (9th Cir. 1966) (alien away 17 years held to have abandoned any intent he may once have had to return to the United States); United States ex rel. Polymeris v. Trudell, 49 F. 2d 730, 732 (2d Cir. 1931) (absence of 7 years); Barrese v. Ryan, 203 F. Supp. 880, 888-89 (D. Conn. 1962) (intent of alien controls where it can be ascertained); Matter o f Montero, 14 I&N Dec. 399, 400 (1973). These cases at least establish that the extent of the visit is not controlling where the intent of the alien may reasonably be questioned. United States ex rel Polymeris v. Trudell, supra, 49 F. 2d at 732; Matter o f Kane, supra, at 6-7. It is true that courts have cited factors in addition to the intent of the alien in determining whether a given visit was temporary. Others con sidered have included the duration of the visit and whether the alien has a residence, family ties, property holdings, employment, or business in the United States. See, e.g., Alvarez v. District Director, INS, 539 F. 2d 1220, 1224-25 (9th Cir. 1976); Santos v. INS, supra; United States ex rel. Lesto v. Day, supra; United States ex rel. Alther v. McCandless, supra; M atter o f Castro, 14 I&N Dec. 412, 494 (1973). But it is not apparent
T h e c o u rt also held that m ere retention o f dom icile is insufficient, standing alone, to make a visit tem porary. 21 F. 2d at 308. T his conclusion seems sound, because a person retains his p rio r dom icile until he affirm atively establishes a new one, even if he has no intention o f returning to the place o f domicile. Restatem ent (Second) o f Conflict o f L aw s § 19. " W e also find no requirem ent articulated in the cases that when an alien’s absence is protracted he must have an explanation am ounting to a “legal excuse.” R ather, w hen a stay is protracted, the courts appear to look for an explanation that w ould perm it a conclusion th at the alien had the intent to return and that his visit w as therefore “tem porary” despite its duration. T he State D epartm ent regulation providing th at a protracted visit is not tem porary, unless it w as caused by reasons beyond the alien’s control and for w hich he was not responsible, does not control here. T he applicable IN S regulation only requires a “tem porary absence,” w ithout the additional lim itations con tained in the State D epartm ent regulation. See 8 C F R 242.7a.
43 whether these factors are cited merely as objective manifestations of the alien’s animus revertendi (or lack thereof), or whether they are meant to have independent legal significance. For the most part, we think they are primarily useful as indicia of the alien’s intent. See, M atter o f Kane, supra, at 7-8. O f these additional factors, we are inclined to attach substantive significance solely to the duration o f the stay abroad, if only because the word temporary connotes an element of duration. C f, Gamero v. INS, supra, 367 F. 2d at 127.21 The view that there are ultimate durational limits on a “temporary visit” is evident in the passage from United States ex rel. Lesto v. Day, quoted earlier, that “the intention of the departing immigrant must be to return within a period relatively short, fixed by some early event.” 21 F. 2d at 308-09. It seems likely that many permanent resident aliens who left the country to avoid military service did so with the specific intent of staying away “for the duration” and returning to the United States when it was possible to do so without incurring criminal liability. In our view, the formulation in United States ex rel. Lesto v. Day is sufficiently flexible to permit the Department to regard the “duration” as a “period relatively short” under the special circumstances present here, with that period being fixed by the “early event” of a Presidential pardon, whenever it might come. C f, Gamero v. INS, supra, 367 F. 2d at 126. This approach is particularly justified here because the principal deterrent to the aliens’ return—and therefore the principal reason why their visits abroad became protracted—was the fact that they had committed offenses that could give rise to criminal liability.22 The pardon excuses these very offenses. It is consistent with the purposes of the pardon to insure that its beneficiaries are not penalized by attaching undue significance to the duration of the visit, which resulted from the commission o f the pardoned offenses. This is not to say that every pardoned alien who was once lawfully admitted for permanent residence must automatically be regarded as a permanent resident returning from a temporary visit abroad. A factual question may still exist in some cases as to whether the alien possessed the requisite animus revertendi during his absence. Because of the pardon, the A ttorney General might wish to consider instructing INS to adopt a liberal policy in this regard or to make clear that a protract ed stay due to the possibility of criminal liability will be regarded as a tem porary visit abroad if the alien intended to return when he could do so without incurring criminal liability. It might even be possible, as a
21 T hus, if an alien left the country w ith a fixed intention to return to the United States after 20 years, the c onceded presence o f animus revertendi for that period w ould probably not alone perm it the alien’s visit ab ro ad to be regarded as "tem porary.” But that will not be the situation w ith m any perm anent resident aliens w ho will benefit from the pardon. Cf., Matter o f Castro, 14 I& N Dec. 492, 494 (1973). M T hus, aliens w h o remained out o f the c o untry because o f their possible criminal liability have an explanation for th eir protracted stay that is consistent w ith an intent to return to the U nited States as soon as they could. C f, United States v. Trudell, 49 F. 2d at 732; Matter o f Kane, supra, at 7. See n o te 18, supra.
44 procedural matter, to adopt a presumption that a permanent resident possessed the intent to return during his absence, although this would to some extent be in derogation of the case-by-case approach normally followed. John M. H armon
Acting Assistant Attorney General Office o f Legal Counsel