SIAS

11 I. & N. Dec. 171

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1467
• Status: Published

Opinion

Interim Decision *1467

MAT= or Sus

In Exclusion Proceedings A-8731121 Decided 0 Board' May 6, 1965 Appellant, who was admitted to the United States for permanent residence in 31054 when W years or age; who was immediately returned by bar father to Mexico where she has since continuously resided except for temporary visits to this country when 12 years old, was inadmissible under section 212(a) (20), Immigration and Nationality Act, at the time of her application for admission as a returning resident on November 2, 1964, upon presenta- tion of Form 1-151 issued to her 'shortly after her 1954 entry, since she was not returning to an unrelinquished lawful permanent residence. after a tem- porary absence abroad. Mrca.rmanis• Act of 1952—Section 212(a) (20) [8 1182(a) (20)]—Im- migrant not in possession of valid immigrant visa or similar entry document.

The case comes forward on appeal from the order of the special inquiry officer dated December 30, 1964, finding the appellant inad- missible on the ground . stated above and ordering that she be ex- ,cluded and deported. from the United States. The record relates to a native and citizen of Mexico, born. May 20, 1947, who is presently applying for admission to the United. States as returning resident alien. She presented a Form 1-151, Alien Registration Receipt Card, also known as a. resident alien's border crossing . card, showing that she was admitted for permanent resi- dence on August 24, 1954, at E1 Paso, Texas. The appellant re- •calved this card. shortly after she immigrated to the United States and has not since that time applied for or received any other entry document of any kind from the Service: or from the American 'Consulate in Mexico. The record establishes that the appellant's lather is a native and 'citizen of Mexico and her mother is a. native-born citizen of the United States. The mother married. the father in Mexico in 1940. -The mother had moved. to Mexico when she was five years old. On. 171 Interim Decision t#1467 August '21, 1954, the father and the five children, including the appellant, were admitted to the United. States for permanent resi- dence. Inasmuch as the father did not have a place to reside in the United States, was not steadily employed, and could not afford to remain in the United States, he sent the children, including the appellant, back to Mexico in a, taxi to reside with the mother. The appellant has resided. in Mexico continuously since then except for visits of two or three months each with relatives when 12 years old. She married a United. Siite.s citizen on February 22, 1964 when she was 16 years old, lived with her husband for about a month until he enterci the service, then lived with his mother in El Paso, Texas and returned to Mexico in. September 1964 after birth of her baby in El Paso, Texas on September 6, 1964. At the time she applied • for admission - into the United' States on November 2, 1964 and was held for a hearing before a special inquiry officer under the provi- . dim 2;35(b) of the Immigration. and Nationality Act, as sions of se amended, the appellant intended to go to El Paso, Texas to wash clothes and intended to resume her residence in El Paso as soon as possible since it is her husband's desire that she live with his mother during his absence in the armed forces. Counsel contends that an infant, such as the appellant who Was then seven years old, who secures an immigration visa, and is there- after absent because of the will and domination of the parents, has not voluntarily departed and, has net lost the rights obtained under an immigration visa, if she returns at the first opportunity after emancipation, since she was theretofore under legal compulsion to accompany and be subject to parental authority. He. cites a number of cases which hold that an unemancipated minor who was absent from the United States in company with his parents does not make an entry upon his return from such departure and is not subject to exclusion as.a' member of a criminal class under 8 U.S.C. 1251(a) (4) or under the predecessor statute, 8 U.S.C. What we are concerned ._ with in this case is not whether or not the appellant' is making an entry into the United States 2 •but whether she qualifies as an immigrant who is returning to an unre- ' linquished lawful permanent residence after a temporary absence

letting Valenti v. Karnallt, 1 F. Supp. 370 (N.D., N.Y. 1932) ; Matter of Dauer, Int. Dee. No. 1291 (The latter decision was cited and followed in Mat. ter of Degree, A 8258660 (March Eli loss) ). - -

2 CT. Fleet! v. Rosenberg, 374 U.S. 449 in which the Valenti case was cited as an instance in which a district court refused to hold that an alien who had been absent only briefly had made an entry upon his return to the United States.

172 Interim Decision 4t1167

abroad.• The appellant Wa8 lawfully admitted for permanent resi-. dence on August 24, 1954. The term "lawfully admitted for perma- nent residence" is defined, in section. 101(a) (20) of the Immigration and Nationality Act as meaning the status o1 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. (Emphasis supplied.) Section 101(a) (33) states that the term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, witho;it regard to intent. (Emphasis supplied.) Section 211(a) provides that no immigrant shall be admitted into the United States unless at the time of application for admission he has a valid unexpired immigrant visa. The pertinent regulation, 8 CFR 211.1 provides that a valid unexpired immigrant visa shall be presented by each arriving immigrant alien except an immigrant' who * * * (c) is returning to an unrelinquished. lawful permanent residence after a temporary absence•abroad * * * (1) not exceeding one year and presents a Form 1-151, Alien Registration Receipt Card, duly issued to him. The_ appellant and the other children were sent back to Mexico by her father on the same date that she entered the United States for permanent residence on August 24, 1954. She continued to re- side in Mexico, except fat' temporary visits when 12 years old, and has not applied for admission for permanent residence for ten years. The regulation, 8 CFR 211.1 requires an immigrant be returningto an unrelinquished lawful permanent residence after a temporary residence abroad not exceeding one year, in which case she May present a Form 1 151, Alien Registration Receipt Card, as an -

acceptable document. The appellant's absence does not come within the terms of the regulations since she is not returning to an unre- linquished lawful permanent residence iriathe United States after a temporary absence abroad not exceeding one year. The record establishes that the appellant never secured permanent residence in the ,Unifed States after her admission on August. 24, 1954 for permanent residence but immediately was returned by her father to Mexico where she has since resided for a period of ten years. Her place of residence or general abode after her return in 1954 was in Mexico. Under the definition of the term "residence" in section 101(•) (33) of the Immigration • and Nationality Act, intent is not a factor' It was therefore properly found .that the The case of Ileuti v. Rosenberg, 874 U.S. 449, which Involved an innocent, casual and brief absence is clearly. inapplicable.

173 Interim Decision #1467

Form 1-151 which she presented at the time of her last application to enter the United States was not a valid entry document or at the time she entered the United States to become married in February 1964. The appeal will be dismissed. However, as the wife of a citizen member of the armed forces and a native of a nonquota country, she should have no difficulty in obtaining an immigrant visa. ORDER: It is ordered that the appeal be and the same is hereby dismissed.