Interim Decision #1428
Miiir.At OF LEE
In Deportation Proceedings
. A-12575376
Decided by Board February 12; 1965
Respondent Is ineligible for the creation of a record of lawful admission for
permanent residence, pursuant to section 249, Immigration and Nationality
Aet, as amended, because the continuity or ills residence in the -united
States since prior to June 28, 1940, was broken by his absence to China
from April 1947 to August 1951, during which he maintained no personal
Property, business or financial interests in the United States and, following
the death of his wife ebortly after ida arrival in China, remarried, went into
business there and intended to remain had not the communists overrun that
country.
Cacaos:
Order: Act of 1952—Section 241(a) (1) 18 U.S.C. 1251(a) (1)7—Excludable
'• at entry—Immigrant, no visa.
The case comes forward on appeal from the order of the special
inquiry officer dated October 30, 1964 denying the respondent's application for adjustment of his immigration status under section 249
of the immigration and Nationality Act, but ordering that the deportation of respondent be suspended under section 244(a) (1) of the
Immigration and Nationality Act, as amended.
The record relates to a native and citizen of China, 66 years old,
male, married, who last entered the United States at the port of an
Francisco, California on August 24, 1951 upon presentation of a
United States passport issued to-nim in a name other than his own.
He had first entered the United States in 1922, returned to China
in 1928, remained there until 1986 when he returned to the United
States and again departed April 23, 1947 to China again returning
the date of his last entry as set forth above. At the time of. his last
entry he intended to remain in the United States indefinitely and
to seek employment but was not in possession of a valid immigrant
visa. Deportability on the charge stated in the order to show cause .
bas been established.
Interim Decision 401428
.
The respondent has been granted the discretionary relief of suspension of deportation pursuant to section. 244(a) (1) of the Immigration and Nationality Act, as amended. The appeal, however, is
from the denial of registry pursuant to section 249 of the Immigration and Nationality Act. The discretionary relief of registry is
preferred because the respondent could immediately proceed to file
a petition for naturalization, whereas he is required to wait for five
years after the establishment of the date of lawful entry pursuant
to suspension of deportation proceedings.
The reason for denial of the application for adjustment of status
pursuant to section 249 of the Immigration and Nationality Act is
the conclusion that the respondent's absence from the United Statai
from May 1947 to August 1951 interrupted his continuous residence
from June 28, 1940 and thereby rendered him ineligible for adjustment of status pursuant to section 249 of the Immigration and Nationality Act. The respondent, however, claims continuous residence
in the United States since May 13, 1936. He contends that his
absence from the United States during the period from May 1947
to August 1951 did not interrupt his residence for the purpose of
establishing eligibility under section 249 because he alleges that at
the time he left the'United. States in 1947, he did not intend to give
up his residence in this country but went •abroad because his wife
.was seriously ill; that he decided to return to the United States when
the communists began to invade China in 1949 but was unable to
return because his adopted son. was ill and because of the illness of
this adopted son he remained in China until 1951.' Counsel relies
upon the case of Mendelsohn v. Dulles, 207 F.2d 37 (D.C. Cir., 1953),
which held that a person who had involuntarily resided in a foreign
country for more -than five. years due to financial inability to buy
passage and because of his wife's illness did not forfeit United States.
nationality wider section 101(o) of the Nationality Act of 1940 and
section 406(c) • and (e) of the Immigration and Nationality Act
(8 U.S.C. 804(c), 806(e) and (e)). The court interpreted. such absence as not being voluntary and equated "duress of devotion" and
"coercion of marital affection" with physical restraint to render such
absence involuntary.
The term "residence" is defined in section 101(a) (33) of the Immigration and Nationality Act (8 U.S.C. 1101(a) (38)) to mean the
place of general abode; the place of general abode of a person means
his principal, actual dwelling place in fact, without regard to intent.
l As argued by counsel. In fact, to accomplish this result residence must be
shown from prior to 1924 (section 249).
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Interini decision #1428
Without stressing the higher standard of proof required in establishing a forfeiture of United States citizenship as against the standard
of proof required in deportation proceedings, we believe the cases
may be differentiated on factual grounds.
In a sworn statement made before an immigration officer in connection with a previous application for adjustment of status under
section 249 of the Immigration and Nationality Act (which was
denied, by the Regional Commissioner, Southeast Region) the
respondent stated that the purpose of his trip to China in 1947 and
1951 was because his-wife was real sick, he had a.paper business in
Toishan City, China and had an idea of staying in China but when
the communists came in he returned here. At that time he left no
property in the United States, his wife died a month after his return
to China in 1947, ho married a second wife in 1947 and two children
were horn in May 1948 and December 1950. Not until the communists took over China in 1949 did he decide to return to the United
States (Ex. B of Ex. 7, p. 10): In a subsequent sworn statement an
January 9, 1962 the respondent was questioned about his residence,
in China from 1947 to 1951. He stated thit when he left the United
States in 1947 he had not made up his mind to return, that he owned
no property in the United States at that time, that later on he went
into lnisiness at Toishan City, Canton, China; that when the communists started invading China he decided to leave that country and
some back, that his intention was to remain. in China if the communists had not invaded and he would have remained there until his
sons caught on to the business and then he would have come back.
He stated during the four years he spent in China from 1947 to 1951
he had not maintained a. residence in the United States, having sold
his business when he made his trip back to China, and intended, if
he came back, to look for a new •business and start again. The ages
of his sons, Lee Toi Kew and Lee Ben Kung, whom hestated were
not his blood sons, were 20 and over 30, respectively. It may be
noted that the respondent has not during previous proceedings mentioned that his continued stay in China was due to the illness of an
adopted son.
R is believed that the case is govemed . by the decision in Chan
Wiwi Chung v. Hamilton, 298 F.241 450 (1st Cit., 1962). In that
case the alien, an applicant for creation of a record of lawful tubas .
-
sion tor permanent residence under section 249 of the Immigration
and Nationality Act, had entered the United States before 1940 and
returned to China in March 1947. In July 1947 while in Hong Kong
he married and resided there in his mother's apartment with his
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Interim Decision 4fr1428
wife, until August 1950. During that time he and his wife had three
children and during the latter part of his stay in Hong Kong he was
employed. The alien contended that by various evidence relating to
his continuous financial interest in the United States and the payment of rent upon his apartment here, where he left his clothing
and furniture during his absence, and by an affirmative statement
that he- "intended to continue residence indefinitely in the United
States", it could be found that he had been a continuous resident
since his original entry. The court, making reference to the definition of residence in section 101(a) (33) of the Immigration and
Nationality Act (8 U.S.C. 1101(a) (33)), held that residence within
that definition was not the equivalent of domicile and that it could
not be found that the alien's "principal, actual dwelling place in
fact" was "continuously" in the United States throughout the period
1947 to 1950 when he was living in China.
The instant case does not present as many favorable factors as
were present in the C1eung case, supra. Here, the respondent
admittedly gave up all his business connections in the United. States,
did not maintain an apartment, and did not leave any personal property or have any financial interest in this country. .The illness of his
wife lasted but one month. Thereafter, he ramarried, went into business in _China, had two children., ond.would have continued to reside
there had not the communists overrun the country. We conclude
that the respondent's "principal, actual dwelling place in fact" was
not continuously in the United States during 1917 to 1951. The
respondent has been granted suspension of deportation. The appeal
will be dismissed.
- ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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