Interim Decision #2435
MATTER OF THOMOPOULOS
In Section 223 Proceedings
A-30519762
Decided by Acting Regional Commissioner September 26, 1975
(1) In determining whether an applicant for a reentry permit under section 223 of the
Immigration and Nationality Act intends to depart temporarily from the United States,
the following Factors serve as a reliable indication of intent: the duration of the applicant's absence; the motive for departure; the location of applicant's job, family ties, and
property holdings; and the date of the intended return.
(2) Application for a reentry permit is denied in the instant case since applicant's departure from the United States is not deemed to be for the purpose of making a temporary
visit abroad but rather for the purpose of returning to his domicile in Greece. At the
time of his departure, applicant left nothing in the United States and was returning to
his family, his farm, and to a job he was holding in Greece in addition to his farming
responsibilities.
This case is before the Regional Commissioner on appeal from the
decision of the district director, Los Angeles, who found that the applicant's absence from the United States is not of a temporary nature, and
that his actual dwelling place is in fact Greece and not the United States.
The applicant is a 46-year-old married male, native and citizen of
Greece. His wife and two minor children are natives and residents of
Greece. He was originally admitted to the United States as a lawful
permanent resident on June 22, 1970, in fifth preference classification,
based on an approved visa petition filed by his United States citizen
brother. He worked in the United States for one year and then returned
to his family in Greece. Prior to leaving the United States, he made
application for a reentry permit. The reentry permit was issued to expire
on July 21, 1972, and was forwarded to the American Embassy in Athens
for delivery. It was extended until July 20, 1973. The applicant next
returned to the United States approximately July 16, 1973, and made the
application now before us for consideration. He directed that the reentry
permit be sent to the American Embassy in Athens for delivery, and he
then returned to Greece in August 1973.
The applicant stated in his first application for a reentry permit that he
was going abroad to take care of personal business and to "bring his
family." In the application to extend that permit, he stated that he wished
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to remain in Greece to liquidate property and to have his children
complete the 1972-1973 school year. In the August 1973 application
before us, he states that he intends to stay abroad for two years for
business, and to complete his children's education. In a letter contained in
the file, the applicant states that he needs the reentry permit because he
does not want to leave his land in Greece untilled and because he has a job
there and owes certain obligations to his employers. On appeal, applicant
states that his return to the United States has been delayed by the death.
of his father. However, he furnishes no details regarding when the death
occurred or why it affected his return to this country.
Section 223 of the Immigration and Nationality Act, in pertinent part,
provides that an alien lawfully admitted to the United States for permanent residence, who intends to depart temporarily from the United
States, may make application to the Attorney General for a permit to
reenter, and if it is found that he was lawfully admitted for permanent
residence and that he desires to visit abroad and return to the United
States to resume the status existing at the time of his departure for such
visit, the Attorney General may in his discretion issue the permit which
shall be valid for not more than one year from date of issuance. It is
provided that the Attorney General may, in his discretion, extend the
reentry permit for a period or periods not to exceed one year in the
aggregate.
It is agreed that the applicant had been legally admitted to the United
States for permanent residence. The question of whether the applicant
intended to depart temporarily from the United States when the instant
application was filed must be resolved.
The duration of the absence must be considered in determining
whether it can be deemed temporary, and the word "temporary" cannot
be used to describe along absence, although it may have been induced by
a highly commendable sense of filial duty, Gamero v. INS, 367 F.2d 123
-
(C.A. 9, 1966). The motive for the alien's departure from the United
States, the location of his job, family ties and property holdings are all to
be considered in determing whether an absence from the United States is
temporary, Santos v. INS, 421 F.2d 1303 (C.A. 9, 1970). In defining a
"temporary visit" the intention of the departing immigrant must be to
return within a period relatively short, fixed by some early event. Also,
the intention of the alien with respect to the location of his actual home
must be considered, U. S. ex rel. Lesto v. Day,
21 F.2d 307 (C.A. 2, 1927).
Where an alien leaves the United States with no definite intention either
of staying away permanently or returning, the stay abroad would not be a
"temporary visit," United States ex rel. Alther v. McCandless,
46 F.2d
288 (C.A. 3, 1931). In cases of prolonged absences from the United
States, some aliens have been able to establish to the satisfaction of the
Attorney General that their absence was caused by circumstances over
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which they had no control and which continued for a longer period than
anticipated. However, in the absence of an actual admission of abandonment of residence, the circumstances and actions as discussed in the
aforementioned cases serve as the most reliable indication of intent.
In the instant case, the applicant was admitted to the United States as
an immigrant in 1970. After one year, he made application for a permit to
reenter the United States, and returned to Greece. He stated that he was
returning to tali e care of personal business and to bring back his family.
In Greece the reentry permit was extended until July 20, 1973, on his
claim of need to liquidate property in Greece and permit his children to
complete the school year. Prior to the expiration of that reentry permit,
the applicant ca:-neto the United States, made the instant application for
another reentry permit, and returned to Greece all within a month. He
left instructions that the permit was to be forwarded to Greece for
delivery. He stated that he wanted to remain abroad for business and to
complete his children's education. At the time of his last departure from
the United States, the applicant was returning to his family, his farm, and
to ajob he was holding in addition to his farming responsibilities. He was
definitely not leaving to return to this country within a relatively short
period fixed by some early event, Lesto v. Day, supra. He left nothing in
the United States and had no contact with this country other than filing
Federal Income Tax returns as a nonresident alien at the American
Embassy in Ataens, Greece, for the years 1971, 1972, and - 1973. The
record contains copies of the three returns furnished as the result of a
request by the Service dated December 21, 1973. Each return is dated as
having been filed on March 20, 1974.
The entire record in this case has been carefully considered. The
applicant's departure from the United States cannot be deemed as being
for the purpose of making a temporary visit abroad. The evidence
substantiates the finding that the applicant departed from the United
States for the purpose of returning to his domicile in Greece. It is
concluded tha the district director properly denied the application, and
the appeal will '3e dismissed.
ORDER: It is ordered that the appeal be dismissed.
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