Interim Decision #2245
MATTER OF CASTRO
In Deportation Proceedings
A-10489741
Decided by Board December 4, 1978
(1) An alien admitted for permanent residence who departed to Mexico in May
1963; who severed his ties with the United States, moved his family to Mexico,
acquired land, built a house, and obtained steady employment in Mexico,
where he remained for six years, except for his numerous brief business trips
to the United States, was not, upon his return to the United States in 1969,
"returning from a temporary visit abroad" within the meaning of section
101(a)(27)(B) of the Immigration and Nationality Act and was not entitled to
admission as a returning resident through presentation of his Alien Registration Receipt Card (Form 1-151).
(2) Notwithstanding he possesses the requisite familial relationship, the alien in
the instant case is ineligible for the benefits of section 241(f) of the Act, as
amended, since he was required to be in possession of an immigrant visa at
the time of his return to the United States from Mexico in 19R9 and, therefore,
was not "otherwise admissible" (Matter of Lee, 13 I. & N. Dec. 214, 218 (1969)).*
CHARGE:
Order: Act of 1952—Section 241(aX1) [8 U.S.C. 1251(a)(1)] Excludable at entry
under section 212(a)(20)—no valid immigrant visa.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Sam Williamson, Esquire Bernabe Q. Maldonado
1320 Americana Bldg. Trial Attorney
Houston, Texas 7'7002
The respondent has appealed the decision of an immigration
judge which was rendered on April 13, 1973, and which ordered the
respondent's deportation. The appeal will be dismissed.
The respondent is a native and citizen of Mexico who was
admitted to the United States as an immigrant in 1956. In May of
1963 the respondent returned to Mexico, apparently at the behest
of his father. He subsequently purchased land and built a house in
Mexico. He resided there with his family until September of 1969;
Reversed and remanded. See Castro-Guer rero v. immigration and Ncsturaii
/cat /aro
ration Service, 503 F.2d 964 (CA. 5, 1974). Affirmed,
515 F.2d 616 (C.A. 6, 1975).
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Interim Decision #2245
however, he claims to have entered the United States once or
twice a month during that period in connection with his job as the
manager of a Mexican hotel. While the respondnet has testified
that his preference was to remain in the United States, and that
he only stayed in Mexico to please his father, he nevertheless
substantially severed his connections with the United States for a
period of six years and failed to take any steps which might
indicate an attempt to retain permanent resident status.
After his father's death in 1969, the respondent returned to the
United States, evidently with the expectation of residing here
indefinitely. Since then he has occasionally returned to Mexico for
a visit or vacation. He last entered the United States in March of
1971. Subsequent to his admission as an immigrant in 1956, all of
the respondent's entries appear to have been accomplished
through the presentation of an alien registration receipt card
(Form 1-151). It is on the basis of essentially these facts that the
Service charged the respondent with being deportable as an
immigrant not in possession of a valid entry document.
At his hearing, the respondent denied deportability, contending
that section 241(f) of the Immigration and Nationality Act exempts him from deportation under the charge contained in the
Order to Show Cause. On appeal, the respondent also asserts that
there was no finding that he had abandoned his residence in the
United Stales, apparently reasoning that he would not be deporta -
ble in the absence of such a determination. We shall deal with this
latter issue first.
As briefly indicated earlier, the respondent was charged with
being deportable under section 241(aX1) as an alien excludable at
his latest entry under section 212(a)(20) of the Act. Section
212(aX20) mandates the exclusion of any immigrant who in seeking
admission does not possess the required documentation. Section
101(aX15) defines "immigrant" to include every alien who cannot
qualify as a nonimmigrant. It is clear that the respondent would
not have been classifiable as a nonimmigrant, given his intention
to reside indefinitely in the United States. See section 214(b),
Immigration and Nationality Act. Thus, although the respondent
had once been admitted for the purpose of residing permanently,
he was still subject to the regulations and the provisions of the Act
regarding the qualifications necessary for readmittance.
Section 211(b) of the Act is the basic statutory provision authorizing the liberalization of documentary requirements for aliens
previously admitted as immigrants. Pursuant to this section and
the related regulations, an alien who qualifies as a "returning
resident immigrant" may be admitted in the absence of an immigrant visa or, in an appropriate case, without any other documen-
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Interim Decision #2245
tation. Under section 101(aX27)(I3), to which section 211(b) refers, a
"returning resident immigrant" is defined as "an immigrant,
lawfully admitted for permanent residence, who is returning from
a temporary visit abroad." Although there is an issue as to
whether the respondent could qualify as having retained his
status as an alien lawfully admitted for permanent residence, 1 it is
evident that he cannot be viewed as returning from a temporary
visit abroad, and he fails on this ground to satisfy the statutory
definition of a "returning resident immigrant."
The cases which have construed the phrase "temporary visit"
have established several factors which must be taken into consideration. First, the duration of the absence has a definite bearing
on whether it can be deemed "temporary." See Gamero v. INS, 367
F.2d 123 (C.A. 9, 1966). Cf. Matter of Salviejo,
13 I. & N. Dec. 557
(BIA. 1970) Second, the location of the alien's family ties, property
holdings and job all relate to a determination regarding the
character of a visit abroad. Santos v. INS,
421 F.2d 1303 (CA. 9,
1970); Matter of Salviejo, supra. Finally, the intention of the alien
with respect to both the location of his actual home and the
anticipated length of his excursion have been deemed of significance to this inquiry. U.S. ex rel. Lesto v. Day, 21 le.2d 307 (C.A. 2,
1927); Matter of Montero, Interim Decision No. 2216 (BIA 1973).
As indicated, on the facts of this case the respondent cannot be
viewed as returning from a temporary visit abroad. Except for his
numerous brief business trips to the United States, the respondent
remained in Mexico for six years. He severed his ties with the
United States, moved his family to Mexico, acquired land, built a
house and obtained steady employment there. Thus, regardless of
what his ultimate intent might have been, we hold that the
respondent's stay in Mexico cannot be deemed temporary. He
therefore was not entitled to admission through the presentation
of his alien registration receipt card.
The respondent nevertheless maintains that he is saved from
deportation by the operation of section 241(f) of the Act. By its
terms, section 241(f) precludes the deportation of an alien on a
charge relating to the procurement of entry or documentation
through fraud or misrepresentation, if the alien was "otherwise
admissible at entry" and is the spouse, parent or child of a United
States citizen or of an alien lawfully admitted for permanent
residence. The respondent in this case has two citizen children and
therefore clearly satisfies the familial relationship requirement of
'Compare Matter of Antolin,
12 I. & N. Dec. 127 (BIA, 196?), and Matter of
Sias,
11 I. & N. Dec. 171 (BIA, 1965), with Gooch v. Clark,
433 F.2d 74 (C.A. 9,
1970), cert. den.,
402 U.S. 995 (1971), and Matter of M—P—,
9 I. & N. Dec. 747
(BIA, 1962).
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Interim Decision #2245
this section. There is some question regarding whether the requisite misrepresentation exists. However, we need not resolve this
issue because we have concluded that the respondent does not
meet the "otherwise admissible at entry" qualification of the
statute, as construed by prior administrative decisions.
In Matter of Lee, 13 I. & N. Dec. 214, 218 (A.G. 1969), the
Attorney General interpreted the "otherwise admissible" clause of
section 241(f) to require that the alien have completed the administrative screening process necessary for entry as an immigrant.
Although the decision in Matter of Lee, supra, was reversed in Lee
Fook Chuey v. INS,
439 F.2d 244 (CA. 9, 1970), we have deemed
ourselves bound by the Attorney General's position, and we have
thus felt constrained to reject the position taken by the Ninth
Circuit. See Matter of Mangabat, Interim Decision No. 2131 (81A
1972); Matter of Perez-Echeverria, Interim Decision No. 2200 (BIA.
1973).
In this case, the respondent had lost his status as an alien
lawfully admitted for permanent residence. Since he had not
acquired a nonimmigrant status, he must be viewed as any
immigrant alien seeking an initial admission to the United States.
The respondent's lawful entry would therefore have required his
presentation of a valid immigrant visa. To obtain an immigrant
visa, it would have been necessary for the respondent to submit
himself to the consular screening process mandated by the Act.
Since the respondent has not undergone the required screening
for the entry in question, and since the decision in Matter of
Lee,
supra, makes this element a prerequisite to a favorable determination on the "otherwise admissible" criterion of section 241(0, it is
evident that the respondent fails to meet the conditions imposed
by that provision. Accordingly, we find that his deportability has
been established by evidence that is clear, convincing and unequivocal.
Having reviewed the record thoroughly, we find that a remand
on the issue of voluntary departure is unnecessary. We are
satisfied that the respondent is eligible for that relief, and consequently we will grant him 30 days voluntary departure on the
record before us.
ORDER: The appeal is dismissed with respect to the application
under section 241(f) of the Immigration and Nationality Act.
Further order: The decision of the immigration judge is modified, and the respondent is permitted to depart from the United
States voluntarily within 30 days from the date of this order or
any extension beyond that time as may be granted by the District
Director; and 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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