Interim Decision #2362
MATTER OF MARTINEZ
In Exclusion Proceedings
A-17944885
Decided by Immigration Judge October 25, 1974
Affirmed by Board March 18, 1975
Applicant had been admitted to the United States for permanent residence in 1968. Two
years later, she left the United States, taking all her belongings with her and returned
to her native land where she lived and worked for three years prior to this application
for admission as a returning resident under section 101(a)(27)(B) of the Immigration and
Nationality Act Under the circumstances presented by this case, applicant's absence
was not temporary or unintentional. Therefore she was properly found excludable
under section 232(a)(20) of the Act.
EXCLUDABLE: Act of 1952—Section 212(a)(20), [8 U.S.C. 1182 (a)(20)[—Immigrant--No
valid immigrant visa.
ON BEHALF OF SERVICE: Jesse M. Sellers
Trial Attorney
San Antonio, Texas
BEFORE THE IMMIGRATION JUDGE
(October 25, 1974)
This record relates to a 46-year-old single female alien, a native and
citizen of Mexico who last arrived in the United States at Eagle Pass,
Texas, on September 3, 1974, seeking admission as a returning resident,
under Section 101(a)(27)(B) of the Act. In support of her application for
admission she presented Form 1-151, certifying that she had been
admitted to the United States as an immigrant at Eagle Pass, Texas, on
February 1, 1E68. The examining officer was not satisfied that she was
clearly entitled to reenter the United States because it appeared that
she might coma within the exclusion provisions of Section 212(0(20) of
the Act, in that she had resided outside the United States since 1970.
Accordingly, she was held for a hearing before an immigration judge to
determine her admissibility (Exh. 1). At a hearing in exclusion proceedings held before me on October 17, 1974, at which she waived her right
to representation, it was brought out that applicant had been issued an
immigrant visa by a United States Consular Officer at Monterrey,
Nuevo Leon, Mexico, on January 23, 1968, and that she had been
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admitted into the United States at Eagle Pass, Texas, on February 1,
1968, as an immigrant, upon presentation of such visa (Exh. 2).
Applicant resided in Chicago, Illinois, with her brother until
November 1970, when she returned to Mexico. Her last employment in
the United States was at an automobile battery manufacturing company
located in Chicago, Illinois. In November 1970, approximately one
month after she lost her employment, she returned to Zaragoza,
Coahuila, Mexico, where she resumed her residence at 408 West
Galeana Street, with her mother. She has resided in Mexico with her
mother since then, returning to the United States on one occasion to
visit. Applicant explained that approximately one month. after she became unemployed, she packed up all her clothes and other personal
belongings and returned to Mexico.
The evidence establishes that on March 16, 1973, she appeared before
an official of the Civil Registry, Zaragoza, Coahuila, Mexico, and falsely
registered Miguel Angel Martinez and Marta Marcela Martinez, both
born in Allende, Coahuila, Mexico, on February 25, 1973, as her illegitimate children. On the date of her application for admission, she
attempted to register them as lawful permanent residents, pursuant to
8 CPR 211.1, as children born abroad to a lawful permanent resident
mother who was temporarily in Mexico, and who was returning to the
United States to resume her actual residence in this country. During the
course of the inspection it was discovered that the children were not
hers and that she had been residing in Mexico since November of 1970.
As a result of this development she was served with Form 1-122,
notifying her that she was being detained for a hearing before an
immigration judge to determine her admissibility.
The issues to be resolved in this case are: (1) whether the applicant
abandoned her residence in the United States upon her departure to
Mexico in November 1970; (2) whether after her departure to Mexico in
November 1970, she abandoned any intention she might have had to
resume her residence in the United States.
A returning resident alien, as defined in Section 101(a)(27)(B) of the
Act, is one who establishes upon her return to the United States:
(1) that he was in the status of one lawfully admitted for permanent residence before he
left the United States;
(2) that he left the United States intending to return within a period relatively short,
fixed by some early event; •
(3) that he did not subsequently abandon that intention;
(4) that he is returning from a temporary visit abroad—that is, that at all times before
and since his departure, his actions indicated that the United States is his true and
permanent home.
The cases which have construed the phrase "temporary visit" have
established several factors which must be taken into consideration.
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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). 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 (C.A. 9, 1970); Matter of Salviejo,
13 I. & N. Dec. 557 (BIA 1970). Finally, the intention of the alien with
respect to t oth 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 F.2d 307 (C.A. 2, 1927); Matter of Montero, 14 L
& N. Dec. 399, (BIA 1973).
In the absence of an admission of abandonment of residence, overt
actions suc:a as the nature and length of residence serve at the most
reliable inclicia of intent. In cases of prolonged absence from the United
States some aliens have been able to establish to the satisfaction of the
Attorney General that 'their departure and absence were occasioned by
a family emergency to which they felt compelled to respond and which
through no fault or act of their own, continued for a longer period than
anticipated, In other cases, such as Gamero v. INS, supra, Santos v.
INS, supra; and Matter of Salviejo, supra, the explanations for the long
absence was found unacceptable.
In the instant case, the applicant cannot be viewed as returning from
a temporary visit abroad. The evidence is clear that she has severed all
her ties with the United States and has remained in Mexico with her
mother since November of 1970. During this time she has had no
employment, business connections, family, social, cultural or other associations in the United States. In addition, there is no evidence that
she has an established permanent residence in the United States to
which she is returning after a temporary visit abroad. The undisputed
facts are that she has been residing in Mexico since November 1970; that
she has been in good health during the period of time involved; that she
has been gainfully employed at a motel in Zaragoza, Coahuila, Mexico,
as a maid since about four or five months after her return to Mexico; that
upon her return to Mexico she took all her clothes and personal belongings with her; that she has no bank account in this country; and that she
has no property in the United States. I find that the totality of the
evidence leads to the inescapable conclusion that she departed from the
United States in November of 1970, for the purpose of resuming her
residence in Mexico. In addition, the evidence clearly establishes that
regardless of what her intention upon her departure in November 1970,
might have been, applicant's stay in Mexico for four years cannot be
deemed temporary. She is, therefore, not entitled to admission upon
presentation of her alien registration receipt card. Since she does not
possess or present an immigrant visa, I hold that she is excludable
pursuant to Section 212(a)(20) of the Act, as an immigrant not in posses-
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Slat of a valid, unexpired immigrant visa or other valid entry document.
Accordingly, the following order will be entered.
ORDER: It is ordered that applicant be excluded and deported from
the United States.
BEFORE THE BOARD
(March 18, 1975)
ORDER:
PER CURIAM. The decision of the immigration judge is affirmed.
The appeal accordingly is dismissed.
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