Interim Decision #2119
MATTER OF OUTIN
In Deportation Proceedings
A-11423939
Decided by Board janu.ary 5, 1972
(1) For the purposes of section 249, Imniigration and Nationality Act, as
amended, an alien can establiSh continuous residence in the United States
from the date of his original entry as a nonimmigrant crewman, notwithstanding he thereafter on numerous occasions sailed in and out of United States
ports on ships of foreign registry.
(2) Respondent, following his original entry as a crewman in 1947, sailed in and
out of United States ports on ships of foreign registry (approximately 53
round-trip voyages), last entering as a crewman in 1952. During the period
between his first and last entries, he was at sea some 529 days and ashore in
the United States approximately 1,327 days, he maintained his residence in
hotels at the various United States ports of arrival, and his longest voyage
was approximately 2 months. Since his entry in 1947, he has not acquired a
residence in any other country. For the purposes of section 249 of the Act, as
amended, he has had continuous residence in the United States since his
original entry as a crewman.
CHARGE:
Order: Act of 1952—Section 241(a)(9) (8 U.S.C. 1251 (a)(9))—Nonimmigrantfailed to comply with conditions of nonimmigrant status.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
James Canfield, Esquire R. A. Vielhaber
1100 Rockford Trust Building Appellate Trail Attorney
Rockford, Illinois 61101
The Immigration and Naturalization Service appeals from the
decision of the special inquiry officer, dated August 13, 1970,
granting the respondent's application for the creation of a record
of lawful admission under section 249 of the Immigration and
Nationality Act, as amended, 8 U.S.C. 1259. Exceptions have been
taken to the finding that the respondent has had his residence in
the United States continuously since prior to June 30, 1948, as
required by section 249.
The respondent, a, native of China, formerly a citizen of Russia,
male, married, 44 years of age, claims he is stateless. He originally
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Interim Decision #2119
entered the United States as a crewman at the port of San Pedro,
California on July 24, 1947. He last entered the United States at
the same port on August 25, 1952 and was granted shore leave as
a crewman for a period not to exceed 29 days. The respondent
conceded that he is deportable as charged during the hearing
accorded him on November 22, 1955, There was no appeal from the
order of deprtation entered on December 19, 1955 and it became
final.
The respondent on March 8, 1968 moved for a reopening of the
proceedings to permit application for suspension of deportation
under section 244(aX1) of the Immigration and Nationality Act or
in the alternative for the creation of a record of lawful admission
for permanent residence pursuant to section 249 of the Act. The
motion was granted on July 15, 1968. A reopened hearing was
accorded the respondent at San Francisco, California on August
20, 1968.
We are here concerned with the respondent's application for the
creation of a record of lawful admission filed pursuant to section
249 of the Immigration and Nationality Act, as amended. Section
249 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 his residencel 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 for
citizenship. The Service appeal is limited to the, issue of whether
the respondent has had his residence in the United States continuously since prior to June 30, 1948.
The facts with regard to "residence" have been fully set forth in
the opinion of the special inquiry officer. The evidence establishes
that following the respondent's original entry on July 24, 1947, he
made approximately 53 round-trip voyages on foreign flag vessels,
always signing on at an American port for a round trip and never
signing off in a foreign port (p. 29). A log attached to Form . 1-500
(Application to Adjust by a Displaced Person Residing in the
United States) shows that between July 24, 1947, his first entry,
and August 25, 1952, his last entry, the respondent was at sea for a
total of some 529 days and ashore in the United States for
approximately 1,327 days. During this period, the respondent
maintained his residence in hotels at the various ports of his
1 Section 101(a)(33) of the Immigration and Nationality Act 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 #2119
arrival in the United States. His longest voyage during the fiveyear period was for approximately two months. The respondent
testified that since his arrival in July of 1947, he has "made [his]
home in the United States" and "never had a home anywhere
else" (p.7). There is no evidence that the respondent has acquired a
"residence" in any other country but the United States since he
entered the United States in 1947.
The Service contends that the respondent did not have a
"residence" in the United States prior to June 30, 1948 because
there is a "clear legislative intent" under the immigration laws
which distinguishes alien crewmen from other aliens. The Service
argues that "the manifest intent" of former sections 15 and 19 of
the Immigration Act of 1924, 8 U.S.C. 215 and 166, 1940 ed., as well
as the Immigration and Nationality Act of 1952, "is to prevent
[the] admission of alien [crewmen], on the same grounds that a
non [crewman] alien could be excluded, save only that a [crewman]
may come temporarily, and temporarily only, while he continues to
work at his occupation as a [crewman]" (p. 4, Service brief). It is
the Service position that such an intent "prohibits" a finding that
this respondent had a residence in the United States prior to June
30, 1048.
We have carefully read the provisions of the 1924 Act referred to
in the Service brief and have compared them with corresponding
Provisions of the 1952 Act. 2 Whereas both the 1924 Act and the
1952 Act refer to the "temporary landing or entry" of a crewman,
we fail to see the relevance of such language to the issue of
whether the respondent acquired a "residence" in the United
States within the meaning of section 101(a)(33) of the 1952 Act,
supra, footnote 1. We note that section 214(a) of the 1952 Act, 8
U.S.C. 1184(a), the counterpart of section 15 of the 1924 Act insofar
as it relates to crewmen, refers to the admission "of any alien as a
nonimmigrant" rather than referring specifically to an "excepted
class of immigrants" including a bona fide crewman who is seeking
to "temporarily enter the United States" in the pursuit of his
calling. The above-quoted language in section 214(a) does not
support the Service claim of a legislative intent to distinguish
crewmen from other nonimmigrants when they are applicants for
relief under section 249 of the 1952 Act.
The respondent, ever since he originally entered on July 24,
1947, has sought by all available means to remain legally in the
United States (Ex. 10, p. 5). During 1948 he applied for an
immigrant visa for permanent residence (Ex. 10, p. 5). He applied
2,cpetions 101(a)(15)(D). 214. 252 and 253 of the Immigration and Nationality
Act of 1952.
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Interim Decision #2119
for relief under the provisions' of section 4 of the Displaced Persons
Act of 1948 on July 2, 1952 (Ex. 11). There can be no 'doubt that
since July 24, 1947, the respondent's "actual dwelling place in fact"
was not on ship while sailing to and from various 'ports of the
United States. His place of "general abode" was on shore. He
testified on August 29, 1952 that he was seeking employment with
the Southern Pacific Railroad as an electrician and that he resided
at 524 Guerrero Street in San Francisco, California (pp. 9 and 10 of
Ex. 10).
The facts of this case are similar to those considered by us in
Matter of Ting, 11 I. & N. Dec. 849 (BlAi 1966). Ting originally
entered as a crewman in 1945. During the period 1945 to 1953,
when he last entered as a crewman, Ting sailed in and out of
United States ports on •ships of American registry and made some
33 entries as a crewman. We concluded that Ting's. service aboard
a vessel of United States registry since his original entry in 1945
may be deemed as "continuous residence" 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 Act. We noted in our opinion that Ting's several
departures as an alien crewman since his original entry in 1945
had not been under an order and warrant of deportation. This
factor distinguished Ting's case from those in which the courts
have held that a departure from the' United States under a
warrant of deportation breaks the continuity of residence for the
purpose of section 249.3 We have also held in Matter of Young,
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I. & N. Dec. 38 (BIA, 1935), that an applicant's voluntary departure
from the United States following the institution, of, and pursuant
to, deportation proceedings did not break the continuity of his
residence within the purview of section 249. The alien.in the Young
case was occupationally a crewman..
An alien crewman lawfully admitted for permanent residence
who serves upon a ship of foreign registry, owned by a corporation
organized under the laws of the country of registry, the controlling
shares of which are owned by United States corporations and
which plies between ports in the United States and foreign ports,
may establish the "continuous residence" in the United States
required for naturalization pursuant to section 230 of the Immigration and Nationality Act, 8 U.S.C. 1441(a)(2), United States v.
Carman,
174 F.2d 151 (C.A. 2, 1949). Another court said, "The term
`residence' was defined [by Congress] under a particUlar section
3 Mrvica v. Esperdy,
376 U.S. 560 (1964); Chong v. Esperdy,
191 F. Supp. 935
(S.D.N.Y., 1961); Sit Jay Sing v. N‘t,
182 F. Supp. 292 (D. CaL, 1960); affd per
euriam,
287 F.2d 561 (C.A. 9, 1961).
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Interim Decision #2119
[101(a)(33)1 that was to have uniform application," Grauert v.
Dulles, 133 F. Supp. 836, 839 (D.D.C., 1955), affd
239 F.2d 60 (D.C.
Cir., 1956, cert. denied
353 U.S. 917.
We conclude in light of the foregoing court decisions that if an
alien crewman admitted for permanent residence can establish
•"continuous residence" within the meaning of section 330 of the
Immigration and Nationality Act' while sailing in and out of
United States ports on ships of foreign registry controlled by
United States corporations, then the respondent herein, who
sailed in and out of United States ports on ships of • foreign
registry, can also establish "continuous residence" under a statute
which has for its sole purpose the creation of a record of lawful
admission for permanent residence. Uniform application of the
term "residence" as defined by section 101(aX33), supra, footnote 1,
would justify no other conclusion.
We have carefully reviewed the Supreme Court's decision in
Mrvica v. Esperily, supra, footnote 3, in light of the Service claim
that, "In deciding Mrvica, the Court looked at the legislative
intent. Here, also, legislative intent is the prime consideration" (p.
3, Service brief). The only reference in the decision,
376 U.S. 568, to
"legislative intent" is as follows:
The obvious purpose of deportation is to terminate residence. It would defy
common understanding and disregard clear legislative intent were we to hold
that that purpose had not been achieved in this instance. (Emphasis supplied.)
The Supreme Court however, was referring to the "legislative
intent" associated with an executed "order.of deportation" insofar
as such an order relates to a termination of a crewman's residence.
The Court in fact recognized that where there was no executed
order of deportation, the interpretation of what Congress intended
when a resident crewman departed from the United States could
be entirely different. The Court said at
386 U.S. 567:
We think it beyond dispute that one who has been deported does not continue
to have his residence here, whatever may be the significance of other factors in
the absence of a valid deportation. (Emphasis supplied.)
We affirm the special inquiry officer's finding that the respondent is not a member of the excludable classes enumerated in
section 249 of the Act, that he is not ineligible to citizenship and
that he is a person of good moral character. We conclude that the
respondent has 'established eligibility for the discretionary relief
available under section 249 of the Immigration and Nationality
Act. The order of the special inquiry officer will be affirmed and
the Service appeal dismissed.
ORDER: It is ordered that the order of the special inquiry
officer dated August 13, 1970 granting the respondent's applica-
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tion for adjustment of status under section 249 of the Immigration
and Nationality Act be and the same is hereby affirmed.
It is further ordered that the Service appeal be and the same is
hereby dismissed.
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