Interim Decision *1710
MATTER of Awror.rx
In Deportation Proceedings
A-13784760
Decided by Board February 17, 1967
Respondent, a native and citizen of the Philippine Islands, who prior to December 24, 1952, entered Guam where he was employed as a qualified medical
technician and who continued to reside in Guam until his final departure
therefrom in 1957, .notwithstanding his temporary absences therefrom during
that period, is entitled to the presumption of lawful permanent residence under
8 MR 4.2 ()) [now 101.1 (1)] ; however, since respondent voluntarily departed
Guam to reside in the Philippine Islands, where he has resided continuously since 1957 until 1905 and where be has gained permanent roots by his
own voluntary acts, he cannot be regarded as still possessing a claim to permanent residencifinasmucla as his status has changed.
OrrAnam:
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)7Remained
longer—Visitor.
ON BEHALF OP BESPONDENT ON BEHALF or SERUM :
Dan P. Daullov, Esquire R. A. Vielhaber
1101 Dexter Horton Bldg. Appellate Trial Attorney
Seattle, Washington 98104 B. G. Greenwald
(Brief filed) Trial Attorney
(Brief filed)
The case comes forward on appeal from the order of the special
inquiry officer dated September 15, 1966 finding the respondent deportable on the charge contained in the order to show cause, granting
him the privilege of voluntary d4arture in lieu of deportation with
the further order that if the respondent failed to depart when and
as required, he be deported to the Republic of the Philippines on the
charge contained in the order to show cause.
The record relates to a native and citizen of the Philippine Islands,
about 51 years old, male, who last entered the United States on
April 10, 1965, as a nonimmigrant visitor for pleasure. He was found to
have been gainfully employed since October 18, 1965 in violation of his
status and was granted until November 8, 1965 to depart. He has re-
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Interim Decision #17110
mined in the United States beyond the period authorized for his
departure. After a hearing an order was issued November 19, 1965
finding him deportable and granting him voluntary departure or
ordering him deported in the event he did not depart as directed. No
appeal was taken from this decision. A motion to reopen was granted
May 12, 1966 in order to permit the respondent to present additional
evidence that he comes within the provisions of S CFR 4.2(j) promulgated December 8, 1954, effective January 3, 1955, as a person who
acquired lawful permanent residence status as a result of residence in
Guam.
At the reopened hearing it was developed 'that the respondent
enlisted in the United States Army at Camp Murphy, Philippine
Islands on February 19, 1946 and was honorably separated May 23,
1947. Prior to leaving the armed forces, he received a letter from the
Army Office of the Surgeon dated April 23, 1947 recommending him as
a laboratory technician who had received sixteen weeks training in the
army in that category and had previously been a civilian employee of
the army in the same capacity. A letter from the medical director of the
respondent's employer dated December 8, 1948 stated that the respondent had been associated with the medical department at Guam.sines
November 4 1947 and recommended him as a qualified medical laboratory technician at any institution having complete facilities of a
clinical laboratory.
Evidence produced at the hearing established that the respondent
was employed at Guam as a medical technician since October 1947 and
since March 1953 as a senior medical technician until October 6, 1956.
The employment was continuous except for temporary visits to the
Philippine Islands. He testified that before returning to the Philippines from Guam in 1957, he applied to the Immigration Service for
permanent residence, but his application was not granted. No record
of his application could be located.
The regulation upon which the respondent rests his claim to having
been granted lawful permanent residence in the United States, 8
CFR 4.2(j), relates to aliens admitted to Guam prior to December
24, 1952 who can establish by records, either throe government
agencies or contractors of government agencies, that they were admitted other than as a contract laborer and were not otherwise excludable under the Act of February 5, 1917, as amended, and who
continued to reside in Guam until December. 24, 1952 regardless of
the period of time for which they were admitted. This regulation was
subsequently amended October 23, 1956 to exclude from its provisions
those aliens who had been, after December 24, 1952; admitted or read-
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Interim -Decision *1710
miffed to Guam as nonimmigrants. The present regulations incorporate these provisiong in 8 CFR 101.1(i).
The controlling precedent in these circumstances is •.Matter of
C—r—L—, 8 I. & N. Dec. 371 (1959). We agree with the special
inquiry officer that the respondent qualified under the original provisions of 8 CFR 4.2(j) because the work he performed required mental
rather than merely manual effort as its dominant element and therefore he did not come under the contract laborer bar of the regulations;
he was admitted to Guam prior to December 24, 1952 and can establish
by records of the contractor that he continued to reside in Guam until •
subsequent to December 24, 1952. Inasmuch as he complies with the
conditions of this regulation he should have acquired permanent read.t
dence status under that regulation as of the effective date of the regulation on January 3, 1955. The amendment of October 26, 1956 did not
affect the acquisition of the respondent's status as a permanent resident
under 8 CFR 4.2(j) as originally enacted•on December .8,1954 since
such status had already been vested. Matter of C—Y—L—, supra, p.
379. The respondent was entitled to the presumption that he was a
permanent resident of the United States under 8 CFR 4.2(j) and that
this status continued until his final departure to the Philippine Islands
in October 1957.
Accepting the premise that the respondent had permanent residence
until his departure to the Philippines in 1957, the question remains
whether his absence thereafter, without knowledge that he had such
permanent residence, served to divest him of his permanent residence
status. The evidence shows that when the respondent returned to the
Philippine Islands in 1957 he intended to establish permanent residence there as evidenced by the fact that he resided there with his
.family, was employed there and attended to various private, business
enterprises. The claim of the respondent is that had he known he
was entitled to presumption of permanent residence under 8 CFR
4.2(j) , he would not have returned to the Philippine Islands but would
have brought his family to the United States and resided here. However, we must determine the case upon the facts and not upon mere
speculation.
The term "lawfully admitted for permanent residence" as defined
in section 101(a) (20) of the Immigration and Nationality Act means
the status of having been lawfully accorded the privilege of residing
permanently in the United as an ithmigrant in accordance with
the immigration laws, such status not having changed. The term "resident" as defined in section 101 (a) (33) of the.Act means the place of
general.. abode; the place of general abode of a 'person means his
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Interim Decision #1740
principal, actual dwelling place in fact, without regard to intent.
Even accepting that the respondent was entitled to presumption of
lawful permanent residence which he acquired by his residence in
Guam, is he in any better position than a person who had immigrated
to the United States for permanent residence with a visa and thereafter has been absent from the United States for as long a period as
the present respondent? We believe that by the nature and length of
the absence, respondent's status has changed as that term is used in
section 101 (a) (20) of the Immigration and Nationality Act and he
can no longer be regarded as a returning resident.
In a similar case involving a Mexican alien who was admitted to
the United States when 7 years old and thereafter was immediately
returned by her father to Mexico where she resided continuously
except for temporary visits, it was held that the alien could not be
regarded as returning to an unrelinquished permanent lawful residence after a temporary absence abroad. Matter of Sias, Int. Dec. No.
1467. The alien, in view of her entry at such a young age and her immediate departure, probably was not aware of her permanent residence status. Nonetheless, it was held she was not admissible at the
time of her application for admission unless in possession of a valid
immigration visa.
Where a person had no knowledge that he had a claim to United
States citizenship at the time he comimtted an expatriating act, he did
not lose •United States citizenship.* The Attorney General was influenced by the Supreme Court's emphasis that where deprivation of
the "precious right of citizenship" is involved, "the facts and the law
should be construed as far as reasonably possible in favor of the
citizen," citing Nishikawa v. Dulles, 356 U.S. 129.2
However, the instant case is not comparable to cases involving the
loss of United States citizenship 'with its accompanying heavy burden.
Here the respondent at best was entitled merely to a presumption of
lawful permanent residence which he gained by his residence in Guam.
Granting that he has been found to be entitled to such status, he is in
no better position than a person who immigrated to the United States
for permanent residence with a visa and who under similar circumstances would have been considered to have abandoned his permanent
residence status. The departure of the respondent to the Philippines
Matter of 0-5---, 9 L & N. Dec. 670 (A.G., 1902) ; Matter of C—A—, 9 L & N.
Dee. 482; Ropers V. Patokoski, 271 5'.2d 858 (9th Cir. 1969).
I See also Schneiderman v. United States, 320 V.S. 118 and Gonzales v. Landon,
350 U.S. 920 where the Supreme Court in denaturalization and expatriation cases
required the Government to establish its allegations by clear, unequivocal and
convincing evidence.
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Interim Decision #17110
was entirely voluntary, 'without duress or coercion and was in accord
with his own wishes to reside in that country. Under.the circumstances
of the case we are unable to find that the respondent, who has resided
in the Philippines continuously since 1957 until October 1965, who
has gained permanent roots in that country by his own voluntary acts,
can be regarded as still possessing a claim to permanent residence in
this country, inasmuch as his status has changed. The appeal will be
dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
131
