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 presentation 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 temporary absence abroad.
Mrca.rmanis• Act of 1952—Section 212(a) (20) [8 1182(a) (20)]—Immigrant 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 inadmissible 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 residence 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.
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Interim Decision t#1467
August '21, 1954, the father and the five children, including the
appellant, were admitted to the United. States for permanent residence. 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 thereafter 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.
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Interim Decision 4t1167
abroad.• The appellant Wa8 lawfully admitted for permanent resi-.
dence on August 24, 1954. The term "lawfully admitted for permanent 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 reside 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 unrelinquished 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.
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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.
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