Interim Decision 412216
MATTER OF MONTERO
In Deportation Proceedings
A-13198996
Decided by Board August 9, 1973
(1) An alien abandoned her lawful permanent residence upon her departure from
the United States during March 1963 when she returned to her husband,
children, home, business and financial resources in the Dominican Republic
since she had no fixed intention to return to the United States within a period
fixed by an early event.
(2) An alien's voluntary statement of renunciation of United States residence
given to an immigrant inspector in a non-custodial setting was not invalid for
lack of due process because of failure to give Miranda notice as to right to
counsel.
CtiARGE:
Order: Act of 1952—Section 241(aX2) (8 U.S.C. 1251(a)(2)]—Non-immigrant
visitor—remained longer than permitted.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Esther M. Kaufman, Esquire Irving A. Appleman
1823 "L" Street, N.W., Suite 102 Appellate Trial Attorney
Washington, D.C. 20036
Antonio C. Martinez, Esquire
324 West 14th Street
New York, New York 10014
(Rrief filed)
This is an appeal from the order of the immigration judge
finding the respondent deportable, denying her application for a
waiver of documents, and granting her the privilege of voluntary
departure. The appeal will be dismissed.
The record relates to a married female alien, 42 years of age, a
native and citizen of the Dominican Republic. She was granted an
immigrant visa on October 26, 1962, at which time she stated that
it was her intention to go to the United States permanently, to
work in New York. She married a Dominican on January 1, 1963.
She entered the United States alone on February 22, 1963 in
possession of her immigrant visa. She stayed in New York City in
the apartment of the sister of the father of her children for about
20 days. Immediately after receiving her 1-151 (Alien Registration
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Receipt Card), she returned to the Dominican Republic, where she
and her husband owned and operated a business.
In order to purchase merchandise for her business, she thereafter started making frequent shopping trips to Puerto Rico. On
April 16, 1964, during questioning by an immigrant inspector, she
signed a statement that she resided in the Dominican Republic,
not in the United State; and that she "renounced" her "residence" in the United States and would thereafter travel to the
United States with a visitor's visa. She surrendered her alien
registration card to the immigrant inspector. From 1964 to 1970
she entered the United States numerous times with a visitor's
visa. She is now in the United States pursuant to her latest entry
as a nonimmigrant visitor, the date of which was April 9, 1970. She
was authorized to remain until April 30, 1970. She has remained
thereafter without authority.
At the deportation hearing, the respondent claimed that she
was improperly deprived of her resident status during the interview with the immigrant inspector on April 16, 1964. She claims
that she should have been afforded an exclusion hearing before an
immigration judge and warned of her right to counsel before a
statement was taken. Inasmuch as she was not warned, she claims
that her due process rights were denied and that her status as a
resident continues to the present time. Consequently, she claims
that she should be considered a lawful permanent resident and
deportation proceedings terminated. She further requests that,
pursuant to section 211(b), documentary requirements be waived,
retroactively, to excuse the fact that she did not present the
documents required of a returning resident at the time of her
present entry. The immigration judge found that she could not
have qualified for returning resident status on April 16, 1964 and
dehied her application for a waiver of documents. We agree with
his finding and decision.
On April 16, 1964 the respondent was entitled to be admitted as
a returning resident only if she was returning to the United States
from a temporary visit abroad. The facts indicate that on that date
she was not returning from a temporary visit abroad. Even
without considering her 1964 statement renouncing her residence,
it is clear from her present testimony that she had no fixed intent
to return to the United States when she departed during March
1963. To establish that a visit abroad was temporary, the alien
must show that he or she departed with a fixed intent to return,
Matter of B--, 9 L & N. Dec. 211(BIA, 1961), reversed on other
grounds, Barrese v. Ryan, 203 F. Supp. 880 (D. Conn., 1962); Santos
v. INS,
421 F.2d 1303 (CA. 9, 1970). "The intention of the departing
immigrant must be to return within a period relatively short, fixed
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by some early event," U.S. ex rel Lesto v. Day, 21 F.2d 307 (CA. 2,
1927). The intention of the respondent was not to return to the
United States within a period fixed by an early event. Her
husband, children, home, business, and financial resources were
all in the Dominican Republic. When she departed from the United
States she did not leave behind her home; rather, she returned to
or reestablished her home in the Dominican Republic.
The respondent's signed statement of April 16, 1964 merely adds
corroboration of the above conclusion. She claims that the statement was coerced because the immigrant inspector informed her
that she could not use her alien registration card, and did not
advise her of her right to counsel or a hearing. There is no
evidence in the record indicating that her statement was coerced
or otherwise involuntary. The requirement of giving advice as to
the right to counsel is limited to a person in custody, Miranda v.
Arizona,
384 U.S. 436 (1966). The respondent was not in custody
when she executed the statement in question. Furthermore, it has
been held that there is no right to advice as to the right to counsel
during investigative stages of immigration proceedings. Matter of
Steele,
12 I. & N. Dec. 302 (ETA, 1967). Even without the statement,
however, the record is clear that the respondent was not admissible in 1964 as a returning resident. In fact, all of her admissions as
a returning resident between March 1963 and April 1964 were
erroneous on the part of the inspecting officers.
The respondent was not prejudiced by the lack of a hearing in
1964, inasmuch as one was furnished in 1972. The immigration
judge considered the case from the standpoint of a 1964 exclusion
hearing and decided that the respondent would have been then
found excludable. She did not lose her resident status because of
her statement renouncing her residence. Rather, she had already
lost it, because she abandoned it when she departed during March
1963 with no fixed intent to return. Her intent then was to reside
permanently in the Dominican Republic.
The fact is that the respondent did not seek to return permanently to the United States until after events in the Dominican
Republic caused financial reverses to her business, events which
were not foreseeable when she returned to the Dominican Republic in 1963. Inasmuch as we find that the respondent abandoned
her lawful permanent resident status when she departed during
March 1963, and that she was not a returning resident at the time
of her present entry, she is not eligible for a waiver of the
documents applicable to a returning resident.
ORDER: The appeal is dismissed.
It ie further ordered that, pursuant to the immigration judge's
order, the respondent be permitted to depart from the United
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States voluntarily within 30 days from the date of this decision or
any extension beyond that time as may be granted by the District
Director; and that, in the event of failure so to depart, the
respondent shall be deported as provided in the immigration
judge's order.
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