Interim Decision #2168
MATTER OF NAKOI
In Deportation Proceedings
A-13933641
Decided by Board October 11, 1972
A lawful permanent resident alien's departure to Canada in August 1967 to
fulfill a 9-month-academic-year teaching contract was not an "innocent,
casual, and brief excursion abroad" within the ambit of Rosenberg v. Fleuti,
374 U.S. 449 (1963), notwithstanding a continuing intent to maintain his
United States residence; hence, upon his return to the United States in
December 1967 he made an "entry" within the meaning of section 101(a)(13) of
the Immigration and Nationality Act upon which to predicate a ground of
deportation.
CHARGE:
Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251]—Convicted of clime
involving moral turpitude committed within five years
after entry and sentpnred to confinement or confined
therefor in a prison or corrective institution for a year
or more (kidnapping--18 U.S.C. 1201-1970)
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Julius C. Biervliet, Esquire A. L. Tadlock
Legal Aid Society Acting Trial Attorney
11 Park Place (Brief filed)
New York, New York 10007
(Oral argument scheduled but counsel did not
appear)
On March 14, 1972, having no application for discretionary relief
before her for consideration, the special inquiry officer directed
that the respondent, who had conceded deportability, be deported
from the United States to Austria on the charge contained in the
order to show cause. The respondent, who was not then represented by counsel, waived his right to appeal from that decision,
which thereby became final. A warrant for his deportation was
issued on April 6, 1972.
The respondent subsequently moved for reopening of his proceedings. That motion, which was unopposed by the Service, was
granted and a forthPr hearing was held. On September 1, 1972, the
special inquiry officer again entered an order of deportation, as
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above. The respondent took a timely appeal therefrom, to bring
the case before this Board for review. That appeal will be dismissed.
The respondent, a 35-year-old single male alien, is a native of
Hungary and a naturalized citizen of. Austria. He was originally
admitted to the United States as a student in 1963. 1 His status was
adjusted to that of a permanent resident on or about April 15,
1965. He thereafter made several trips outside the United States,
his returns from which would have posed no problem except for
one fact. He was convicted in the United States District Court for
the Southern District of New York, of the crime of kidnapping,
committed on or about May 26, 1970, in violation of 18 U.S.C. 1201,
and sentenced to confinement in a prison or corrective institution
for a period of three years.
It is well established and uncontested here that the crime of
which the respondent stands convicted involves moral turpitude?
Thus, he is deportable if any of the returns he made within five
years preceding the commission thereof (1970) constituted an
"entry," within the contemplation of section 101(a)(13) of the
Immigration and Nationality Act, 8 U.S.C. 1101. These proceedings
are predicated on the charge that his return to the United States
following a 1967 Canadian sojourn constituted such an "entry."
The facts giving rise to that charge can be summarized briefly.
As the result of correspondence between St. Mary's University,
Halifax, Nova Scotia, Canada and respondent, he was offered and
accepted a contract to teach (lecture) in the Theology Department
of that institution for the academic year September 1967—May
1968, inclusive, at a salary of approximately mow, plus lodging.
The respondent left the United States in the latter part of August
of 1967 to fulfill the terms of that contract, which called for him to
commence teaching on September 1, 1967. However, differences
arose between school' officials and the respondent which resulted
in the termination of his employment in December of 1967. He
returned to the United States through the port of Buffalo, New
York, that same month?
With two exceptions, section 101(aX13) of the Immigration and
Nationality Act provides that any coming of an alien from a
foreign place, whether it is a first coming or return, is an "entry"
subjecting the alien to the exclusion and/or expulsion provisions of
He was then a duly ordained Catholic priest.
2Matter of P—, 5 I. & N. Dec. 444 (BIA, 1953).
See stipulated amendment (hearing, R-20, 21) to factual allegation No. 4,
Order to Show Cause, charging entry at an unknown northern border port in
April 1968 (respondent apparently made two subsequent brief trips to Halifax in
1968, to pick up belongings and visit friends).
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Interim Decision #2168
the immigration laws. The two exceptions are: (1) a coming
following an involuntary departure; (2) a coming following a
departure which "was not intended or reasonably to be expected"
by the alien. Thus, an alien falling within the exceptions does not
make an "entry" upon his return because, under the law, he is
regarded as if he had not left the United States.
Viewing the foregoing facts in the light of the usual meaning of
the ordinary words appearing in the statute, it would seem at first
glance that the respondent's case does not fall within either of the
stated exceptions. The record contains not the slightest indication
that the respondent's presence in Canada was the result of either
coercion or inadvertence. It indicates, rather, that he fully intended and/or reasonably expected to go there. But we cannot
dispose of the problem here that simply, because of the 1963 ruling
of the Supreme Court of the United States in the case of Rosenberg v. Fleuti, 374 U.S. 449 (
10 L.Ed. 2d 1000,
83 S.Ct. 1804), that
the intent exception to section 101(a)(13) means "an intent to
.
depart in a manner which can be regarded as meaningfully
interruptive of the alien's permanent residence."
Respondent contends his case falls within the Fleuti "intent"
rule, supra, for the reason that he never intended to abandon his
permanent residence in the United States. He argues that: all
during the time he was in Canada he was in the process of
establishing a mail order export -import business in the United
States,4 in contemplation of leaving the religious life; he had a
business address (post office box) in Cambridge, Massachusetts, in
connection therewith; he made trips back to the United States
from Canada in October and November of 1967, each of about two
weeks' duration, to conduct that business—both at his Boston
importer's office and in travels around the Eastern United States;
on those occasions he, stayed at the home of various religious
orders where he had lived prior to going to Canada and where he
resided between the time of his final return from Canada (footnote
3, supra) and his departure from the clerical ranks; 5 and in
October of 196'7 he notified Service officers at Pittsburgh, Pennsylvania and Boston, Massachusetts of his absence from the United
States and his "permanent" United States address. He submits
that the fact that his business venture ultimately failed is of no
consequence.
While not challenging the respondent's last stated proposition,
we reject his basic contention and find wanting his supporting
factual argument. In our opinion, "intent to abandon permanent
4 He claimed he also attempted to set up a similar business in Canada during
that poriod, but was unsuccessful.
5 He was apparently relieved of his priestly obligations in 1970.
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resident status" is not synonymous with "intent to depart in a
manner which can be regarded as meaningfully interruptive of
permanent residence." We are not aware of any judicial decisions
equating the two concepts, and respondent has cited none. On the
contrary, it has been administratively determined, for reasons
,
which are equally applicable here, that a continuing intent to
maintain United States residence is not decisive, 6 but is merely
one factor to be considered in determining whether an alien's
departure was intended to be meaningfully interruptive of his
permanent residence? •
We must, therefore, evaluate the foregoing factor together with
others which the Supreme Court in Fleuti, supra, pointed up as
being relevant in determining whether a departure had been
intended to be disruptive of residence, to wit: length of the
absence, purpose of the visit, need to secure travel documents. In
weighing these considerations, we cannot overloo1 the Court's
admonition in
Fleuti, supra, that "an innocent, casual, and brief
excursion by a resident alien outside this country's borders ...
may not subject him to the consequences of an, 'entry' into the
country on his return."
The facts recited above indicate that the respondent may well
have had a continuing intent to return to the United States from
Canada at all times here pertinent, despite his abortive attempt to
set himself up in business there (footnote 4, supra). Also, the
purpose of his trip was ostensibly bona fide, honorable, lawful, and
not necessarily inconsistent with any policy reflected in our immigration laws. Nevertheless, it is our judgment that respondent did
make an entry when he returned from Canada in December of
1967.
Well in advance of his August 1967 departure, the respondent
made plans to be in Canada for a period of approximately nine
months. Obviously, those same plans contemplated his being
present there basically all the time during that period. They also
involved substantial remuneration for respondent's services. The
effect thereof certainly was not materially altered by the unscheduled change in circumstances occurring four months after his
departure.
When the respondent departed from the United States, he was
inspected by a Canadian immigration officer. To gain admission to
Canada, he had to show that officer his "green alien registration
card" (Form 1-151) and a letter from St. Mary's University concerning his employment. At that time, the officer warned the
respondent that if he sold anything in Canada he would have to
Matter of Guitnares, 10 I. & N. Dec. 520 (BIA, 1964).
7 See Bilbao-Bastida v. INS,
409 F.2d 820 (C.A. 9, 1969).
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pay duty on it. After two or three months the respondent had to
obtain Canadian license plates for his previously United States
registered automobile.
Summarizing briefly, after careful preparation, the respondent
departed from the United States to engage in gainful employment
in Canada on a full-time basis for an academic year of approximately nine months' duration_ The circumstances of his admission
to Canada to fulfill that purpose were such as to reasonably have
caused him to consider more fully the implications involved in his
leaving this country.
On the foregoing bases, we conclude that this case does not
involve "an innocent, casual, and brief excursion abroad" by a
resident alien, within the scope of the Fleuti decision, supra.
Therefore, we hold that the respondent's departure to Canada in
August of 1967 was "meaningfully interruptive" of his resident
alien status and did subject him to the consequences of an "entry"
upon his return to this country in December of 1967. Accordingly,
and in view of the foregoing, the special inquiry officer's order of
deportation is affirmed. All we need add is that, as pointed out by
the special inquiry officer, the crime of which the respondent
stands convicted renders him ineligible for discretionary relief
from deportation.
ORDER: It is ordered that the appeal be and it is hereby
dismissed.
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