Interim Decision #1654
ALVA-Leg Or TING
In Deportation Proceedings
A-9301237
Decided by Board September 30, 1966
An alien who, following his initial entry into thin country no a nonimmigrant
crewman in 1945, thereafter sailed continuously on vessels of American
registry, entering the United States as a nonimmigrant crewman at least
33 times up to his last entry - as a crewman in 1953, during which period
'his home port was San -Francisco and his longest absence between trips
was 4 months, Vas had his residence in the United States continuously since
such entry for. the purposes of section 24.9, Immigration and Nationality
Act, as amended. [Matter of 8 I. & N. Dee. 46,3, distinguished.]
Damon:
Order: Act of 1952—Section 141(a) (2) (8 V.S.O. 1251(a) (2)3—Nonimmigrant, remained longer.
The respondent, an unmarried male alien, 52 years of age, is a native and citizen of China.. He has been found deportable as a. nonimmigrant crewman who remained longer than permitted. An order
entered by the special inquiry officer o(June 17, 1966 suspended the
respondent's deportation under the provisions of section 244(a) (1)
of the Immigratimi and Nationality Act, as amended (8 U.S.C.
1254(a) (1)). The order also denied the respondent's application
for the creation of a record of lawful admission for permanent residence pursuant to section 249 of the Immigration and Nationality
Act, as amended (8 U.S.C. 1259). The respondent took no appeal
from the decision of the special inquiry officer. The case has been
certified by the special inquiry officer for final decision by the Board
Of Immigration Appeals on the issue of the respondent's eligibility
for the creation of a record of lawful admission for permanent residence pursuant to section 249 of the Immigration and Nationality
Act, as amended (supra).
The respondent originally arrived in the United States during the
spring of 1945 as a crewman aboard a British ship. He deserted the
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Interim Decision *1654
British ship and on April 9, 1945 signed on an American ship at the
-
port of San Francisco. Theieafter, he sailed on American vessels
continuously until his last entry on October 16, 1953. He was admitted as a crewman on this occasion and failed to depart within
the 29-day limitation. Deportability on the charge stated in the
order to show cause is conceded.
Section 249 of the Immigration and Nationality Act, as amended,
provides in substance that the Attorney General may create a, record
of admission for permanent residence in the case of an alien who
affirmatively establishes (a) that he entered the -United States prior
to June 30, 1948, (b) that he had had his residence' in the United
States Continuously since such entry, (c) that he is a person of good
moral character and (d) that he is not ineligible to citizenship. The
special inquiry officer finds that the respondent has affirmatively established that he is not ineligible.to citizenship; that he is a person
of good moral character and that he entered the United States prior
to June 30, 1948. He finds the respondent ineligible for the creation
of a record of lawful admission for permanent residence under section 249 of the Immigration and Nationality Act, as amended, on
the ground that the respondent has not established that he has had
his "residence" in the United States continuously since such entry.
The facts with regard to the issue of "residence" are not in dispute. They establish that following the respondent's original entry
in 1945 he entered the United States during the next nine years at
least 33 times as a noninimigrarit crewman. His longest absence between trips was approximately four months.
The respondent testified that he has considered the United States
as his home since 1945. When in San Francisco,' his home port, he
always stayed at the same place, 848 Kearny Street. There is evidence that in the event the respondent was discharged at a port in
the United States, other than San Francisco, the steamship eompany
-would provide transportation money for his return to San Francisco.
The respondent was injured in 1953 while serving on an American
vessel en route to Japan. He was hospitalized in Japan and upon
his recovery returned to the United States as a passenger. Although
he did not work as a crewman, he was admitted on October 16, 1953,
his last entry, as a crewman.
Section 101(a) (SS) of the Immigration and Nationality Act of 1952,
defines the term "residence" as follows:
(33) 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 . . .
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Interim Decision #1654
The special inquiry officer relying on the Assistant Commissioner's
decision in Matter of 1.9 1 B , 8 I. & N. Dec. 463, 465,2 concludes
- — —
that the respondent's temporary admission as a crewman over a
period of years would not support a claim of "continuous residence"
in the United States for the purpose of'qualifying under section 249
of the ImmigratiOn and Nationality Act, as amended. Counsel for
the respondent maintains that the Assistant Commissioner's opinion
does not apply in the respondent's case for the reason that the facts
are distinguishable.
We agree. Sit Jay Sing originally entered the United States as a
crewman in 1939. He did. not depart within the 29-day limitation.
A warrant for his arrest in deportation proceedings was served upon
him on June 26, 1942. A hearing was accorded and on February 12,
1943 a warrant of deportation was issued. Sit Jay Sing departed
foreign as a crewman aboard an American vessel on September 22,
1945. The Immigration Service noted "executed" on the warrant
of deportation.
The issue before the court in the Bit "ay Sinui case was whether
the alien's departure at a time, when a warrant of deportation was
outstanding against him, interrupted the continuous residence he
had established in the United States since his original entry in 1939.
Sit Jay Sing conceded that he "effected his own deportation" when
he voluntarily departed foreign in September of 1945 at a time when
a warrant of deportation was outstanding. He maintained, however,
that ;there was no interruption in his residency in this particular
instance because he departed foreign voluntarily with the permission
of the Immigration Service aboard a vessel of United States registry.
The court held that a departure from the United States under a
warraiit of deportation break the continuity of residence for the
purpose of section 249 and the fact that the Immigration Service
consented to his departure as a crewman did not lessen the force of
deportation. In its discussion of whether . deportation interrupts
residence the court assumed that residency in the United States can
be made out by an alien while aboard a vessel of United States
registry (182 F. Supp. 292, 294, Note 5).
A foreign voyage by an alien seaman on a vessel of United States
registry does not terminate the constitutional protection he enjoyed
'The decision of the Assistant Commissioner dated October 20, 1559 weal:
sustained by the United States District Court for the Northern District of
California, Southern Division on March 11, 1960. Sit Jay Sing, Plaintiff T.
H. D. Nice, District Director,
182 F. Supp. 292, affirmed in a per curiam
opinion by the Court of Appeals for the Ninth Circuit, 287 11`.2d 561 (March
7. 1061).
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Interim. Decision #1654
prior to his departure. Kwang Hai Chew v. Golding, 344 U.S. 590.
Applying the foregoing principle to the present case, We conclude
that the respondent's service aboard a vessel of United States registry since his original entry in 1945 may be deemed as "continuous
•esidente" in the United States for the purpose of qualifying for the
creation of a record of lawful admission for permanent residence
pursuant to the provisions of section 249 of the Immigration and
Nationality Act. The respondent's several departures as an alien
crewman since his original entry in 1945 have not been under an
order and warrant of deportation. This factor distinguishes the
case before us from the decision of the Assistant Commissioner in
the case of S--J—.6—,
8 I. & N. Dec. 463. Cf. Roggenbila v. Lusby
et al., The Malden, 116.Fed. Supp. 315, 318• (U.S.D.C. Mass., 1953).
ORDER: It is directed that the alien's application for the creation of a record of lawful admission for permanent residence pursuant to the provisions of section 249 of the Immigration and Nationality Act, be and the same is hereby granted.
It is further directed that the order entered by the special inquiry
officer on June 1'7, 1966 be and the same is hereby withdrawn.
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