Interim Decision #2796
MATTER OF ZAMORA
In Exclusion Proceedings
A-17231545
Decided by Board June 9, 1980
(1) The voluntary and intended abandonment of lawful permanent resident status by
the parent of a minor child who departs the United States in the custody and control of
such parent will be imputed to the child, who will also be deemed to have abandoned
his lawful permanent resident status.
(2) To the extent that Matter of Bauer,10 I&N Dec. 304 (BIA 1963), holds that a minor
alien can escape the consequences of an "entry" upon returning to the. United States
after along absence simply because he had departed under the custody and control of
his parents, it is overruled. Valenti v. Karnuth,
1 F. Supp. 370 (N.D.N.Y. 1932) and
Rosenberg v. Fleuti,
374 U.S. 449 (1963), distinguished.
(3) Under rule that the intent of a parent is imputed to a minor child subject to the
parent's custody and control, a lawful permanent resident child who accompanied his
mother to Mexico in 1970 when she abandoned her residence, and who continued to live
in Mexico thereafter, lost his permanent resident status.
ON BEHALF OF APPLICANT: Pro se
BY Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members
The applicant has appealed from a decision of the immigration
judge, dated April 18, 1979, excluding him from the United States as an
immigrant not in possession of a valid unexpired visa, pursuant to
section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C.
1182(a)(20). The appeal will be dismissed.
The applicant is a 24 -year -old native and citizen of Mexico who
originally entered the United States on March 5, 1968, as a lawful
permanent resident. In early 1970, his father became seriously ill, and
the applicant, with his brothers and sisters, was sent back to Mexico
City to be cared for by his grandmother. The applicant's parents also
returned to Mexico in early 1970, and the applicant's father died soon
thereafter. The applicant, and his entire family (all of whom had
entered the United States as lawful permanent residents), have lived
in Mexico since 1970. The applicant did not return to the United States
on any occasion during these years. In early April of 1979, the appli-
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Interim Decision #2796
cant attempted to enter the United States as a returning lawful
permanent resident. When it appeared to Immigration and Naturalization Service officers that the applicant Might not qualify for that
status, entry was denied, and he was placed in exclusion proceedings.
An exclusion hearing was held before an immigration judge on April
18, 1979. The immigration judge found that the applicant had
abandoned his residence in the United States, and so could not enter as
a returning lawful permanent resident. As the applicant had no valid
unexpired immigrant visa, the immigration judge found him excludable, and ordered that he be excluded and deported from the United
States.
The issue on appeal is whether the applicant has in fact abandoned
his status as a lawful permanent resident of the United States. If he
has, then he was correctly found excludable under section 212(a)(20) of
the Act. That section provides for the exclusion of immigrants seeking
admission to the United States wbo are not in possession of a valid
immigrant visa or other valid entry documents. Section 211(b) of the
Act, 8 U.S.C. 1181(b), provides eligibility for a waiver of the documentary requirements for admission for one who can qualify as a
"returning resident immigrant" as that term is defined in section
101(a)(27)(A) of the Act, R 1101(a)(27)(A). A "returning resident
immigrant" is defined by section 101(a)(27)(A) as "an immigrant,
lawfully admitted for permanent residence, who is returning from a
temporary visit abroad." Hence, the applicant in this case is excludable under section 212(a)(20) unless his absence from the United States
from 1970 to 1979 can be characterized as a temporary visit abroad. We
have determined that it cannot be so characterized, and that the
immigration judge was correct in finding that the applicant had
abandoned his United States residence.
At his exclusion hearing, the applicant testified that his mother had
told him that she had no intention of ever returning to the United
States. Tr. at 12. There is thus no question that the applicant's mother
has abandoned her lawful permanent resident status. We hold that
this voluntary and intended abandonment by the mother is imputed to
the applicant, who was an unemancipated minor at the time he was
sent back to Mexico by his mother, and at the time his mother
abandoned her lawful resident status.
In Matter of Bauer, 10 I&N Dec. 304 (BIA 1963), it was held that no
entry was made by an unemancipated minor upon his return to the
United States at the age of 19, 3 years after departing this country in
the custody and control of his parents. We reached this conclusion
based upon our finding that the alien had had no choice about leaving
the United States but rather that he was "under a legal compulsion to
follow and accompany his parents."
Id. at 308. Because his departure
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Interim Decision #2796
was in this sense involuntary, we held, no "entry" was made upon his
return. The issue in Bauer was whether or not an "entry" was made by
the alien, not, as in the present case, whether he had retained his
lawful resident status upon departing the United States under the
custody of his parents. To the extent that Bauer holds that an alien can
escape the consequences of an "entry" upon returning from such a long
absence simply because he departed under the custody and control of
his parents, it is hereby overruled. Bauer was clearly distinguishable
from the case upon which it relied, Valenti v. Karnuth, 1 F. Supp. 370
(N.D.N.Y. 1932). In Karriuth, it was held that no "entry" was made by
an alien who went on a 1-day school picnic with his high school class,
where his brief departure was compelled by school authorities, and by
state laws requiring him to attend school. This 1-day departure is a far
different thing from the S-year departure of the alien in Bauer. Nor do
we believe that the result reached in Bauer can be defended under the
modern line of "entry" eases beginning with Rosenberg v. Fleuti,
374
U.S. 449 (1963), which exempted a permanent resident alien from the
consequences of an "entry" if his departure could be characterized as
"brief, casual, and innocent," and not "meaningfully interruptive" of
his resident status.
Id. at 462.1 We do not believe that Bauer's 3-year
absence could be so characterized.
However, to the extent that. Matter of Bauer, supra, can be cited for
the general proposition that, because a minor child is compelled to
accompany his parents if they depart from the United States, the
intent of the parents with regard to the departure (i.e., whether or not
they, the parents, intend to abandon their resident status) is imputed
to the accompanying child, Bauer still stands. Applying this rule to the
applicant in the present case is fatal to his application for admission.
The applicant was subject to the custody and control of his mother
when he left the United States. His mother did not retain her United
States residence when she left this country. When she abandoned her
lawful permanent resident status, the applicant also lost his. He
therefore cannot now be classified as a returning resident immigrant
within the meaning of section 101(a)(27)(A).:
As the applicant has abandoned his permanent resident status, he
was properly found excludable as an alien not in possession of a valid,
' The Board's decision in Baser, supra, was reached on June 11, 1963. The Supreme
Court decided
Fleuti, supra, less than a week later, on June 17, 1963.
2 We note also that the applicant did not seek to return to the United States until he
was well over the age of urajurity. lie did out attempt to resume his United Status
residence, nor even to visit this country, for over 9 years. Also, the applicant's family ties
are all in Mexico, and his employment and most of his schooling have all taken place
there.
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Interim Decision #2796
unexpired immigrant visa. His appeal from that finding must accord
ingly be dismissed.
ORDER. The appeal is dismissed.
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