Interim..Decision *1429
MATKAR OP YOUNG
In Deportation Proceedings
A 418 967S
-
Decided by Board. January 99, 1985
Applicant's voluntary departure from the United States following the institution of, and pursuant to, deportation proceedings did not break the continuity of his residence within the purview of section 249, Immigration and
Nationality Act, as amended.
Oxon.:use:
Order: Act of 1952—Section 241(a) (2) (8 U.S.O. 1251(a) (2) ]—Remained_
longer—Nonimmigrant.
Lodged: Act of 1952--Section 241(a) (2) (S U.S.O. 1251(a) (2)] Entered —
without inspection.
The case conies forward on appeal by the trial attorney from a
decisiOn of the special inquiry officer dated September 15, 1981 granting the application for adjustment of status under section 249 of
the Immigration and Nationality Act.
The record relates to a native and citizen of China, 65 years old s
arrived in the United States at the port of male,widorhst
New York on or about July 4, 1947 on the S.S. Paralos and was
ordered detained and refused a landing permit. Ere thereafter
entered the United States without inspection as an alien. Deportability solely on the lodged charge is, conceded.
The respondent has applied for an adjustment of immigrant status
under section 249 of the Immigration and Nationality Act. The
only requirement with which we are concerned is that the alien must
have resided continuously in the United States since prior to June
28, 1940. In his Application for Adjustment of Status as a. Permanent Resident (Form 1-485), executed in connection with the deportation proceedings, and in his Alien Registration Form (Form
AR .2) executed November 2, 1940, the respondent indicated that
he had resided in the United States since 1925. The respondent has
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o.
Interim Decision *1429
established, on the basis of testimony and documents presented, the
requisite continuous residence in the United States since prior to
June 28, 1940. However the Service contends that the respondent
interrupted the continuity of his residence by his voluntary departure on-March 15, 1947 because this voluntary departure occurred
after the institution of deportation proceedings; that any departure
from the United States after deportation .proceedings have beeninstituted breaks the continuity of residence for the purpose of section 24.9 relief.
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 without regard to intent? The Service has commingled
the definitions of "entry" and "residence" to result in the conclusion
that a person whose departure is occasioned by deportation proceedings could not claim that he had not made a new "entry" into the
United. States. It is conceded that the respondent made a new
"entry" into the United States when he entered without inspection
on or about July 4, 1947 after his voluntary departure. Since section
249 of the Immigration and Nationality Act requires continuous
residence in the United. States since prior to June 28, 1940, it is.
apparent that the significant term is "residence" and that the question to be determined is whether such residence was continuous or
was broken by a voluntary departure pursuant to deportation procedings in March 1947. The respondent testified that he reshipped
in France to another vessel owned by the same line at the direction
of the owner of the line. He claims that when he departed in March
1947 he maintained his residence in the United States as indicated
by his retention. of his living quarters in the United States where
he left much of his personal effects.
There appear to be no court cases directly in point: Those court
cases which held that residence for the purpose of section 249 of the
Immigration and Nationality Act was broken involve a departure
under an order of deportation, such departure being regarded as
having executed the order and warrant of deportation. 2
There have been some administrative- decisions which have dealt
indirectly with the problem: In Matter .of P—, 8 L & N. Dec. 167,
the alien alleged entry in the United States in 1920 and continuous
2 Sebtlea 101(a) (33) of the Immigration and Nationality Act, S U.S.C. 1101
(a) t33).
Mrvica v. Beverly, 376 U.S. 560, 11 Led. 2d .911:.Chong v. Beverly, 191 F.
Sung. 935 (8.D.N.Y., 1981) ; Sit Jag Sing v. Nice, 182 F: Supp. 292 (D.C., Cal.
1960) afrd. 287 -F.2d 561.
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Interim Decision *1429
residence since that time. Evidence was presented to establish that
claim and also establish that he had been absent from the- United
States for brief periods on two occasions, in August 1922 and. again
in 1940. The departure in 1922 was as the result of exclusion proceedings. It was held that an alien who has bean absent from the
United States at any time since the entry upon which his application
is based may be found to have resided continuously in the United
States since the date of his original entry if his absence was temporary and his principal actual dwelling place in fact remained in the
United States during the entire period of his absence. It was further
held that a departure from the -United States cre a result of emoktsion
or eepuZsion proceedings breaks the continuity of residence for the
purpose of section 249, regardless of the period of time the alien is
outside the United States after such departure. The underlined portion must be read in conjunction with the next sentence which indicates that the applicant's continuous residence in the United States•
was broken on August 24, 1922 when be .was excluded and deported.
Thus the holding in this case is consistent with the holding of the
Supreme Court in. dirvicay.Espordy, 376 U.S. 560.3
Although the residence since the critical date must be continuous,.
the statute does not require actual physical presence in the United_
States during the entire period. -Temporary absence, without abandoiament of residence in the United States, will not preclude establishment of the required residence. All the statute requires is that
the applicant "has had his residence in the United States continuously since such entry." "Residence" is- defined as "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." 4
The Service suggests that the record-does not•clearly show whether- or not the respondent was accorded the privilege of voluntary departure or left under an outstanding deportation order. A reading of
the evidence clearly shows that it is conceded that he left under an
order of volUntary departure. In any event, if the respondent had
in fact been deported, the Service would have introduced evidence.
of such deportation into the record and if they should' discover such,
evi.dence,.it may properly be made the, subject of a motion to reopen
or reconsider. '
It is Conchnled that the respondent' has established continuous
residence in the United. States since prior to June 28, 1940. gis de-
'matter of P—, 8 X. & N. Ded. 187, was cited with approval In Matter of R—.
8 L & N. Dec. 598,. 599. -
‘.00cdon and Rosenfield, Znanigratrozi ZU417 and Procedure Tat
40:
Interim Decision #1429
parture in 1947 was not the result of exclusion or expulsion proceedings but was voluntary. We are unable to distinguish between a
voluntary departure prior to the institution of deportation proceedings and a voluntary departure subsequent to the institution of
deportation proceedings. The legal effect remains the same. The
respondent has established that his absence was temporary. He is
not a member of the excludable classes enumerated in section 249, is
not ineligible to citizenship and is a person of good moral character.
He has established eligibility for the discretionary relief available
under section 249 of the Immigration and Nationality Act. The
order of the special inquiry officer will be affirmed.
ORDER: It is ordered that the order of the special inquiry officer
dated September .15, 1964 granting the application for adjustment
of status under section 249 of the Immigration and Nationality Act
be affirmed.
It is further ordered that the appeal by the trial attorney from
such decision of the special inquiry officer be and the same is hereby
dismissed.
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