ATATTER OF P—
In SECTION 249 Proceedings
A-4577395
Doaklad by Regional Commissioner Ortuher IC, laCR
Approved by Assistant Commissioner
Adjustment of status—Effect of absence on continuity of residence—Good
moral character requirement.
(1) Applications for adjustment of status under section 249 of the 1952 act
pending on August 8, 1958, will be decided under the terms of the amended
statute.
(2) A temporary absence from the United States will not break the continuity
of residence required by section 249, as amended. However, a departure
from the United States as a result of exclusion or expulsion proceedings
breaks the continuity of the alien's rosidence regardless of the purind of
time he is outside the United States.
(8) Since an applicant under section 249, as amended, is required to establish
good moral character (although not for any specified period of time), the
standards set torts in section 101 (x) of the act will be %A/umlauted along with
other factors in determining whether the requirement has been met.
APPLICATION: Creation of a record of admission for permanent residence under section 249 of the Immigration and Nationality Act.
BEFORE THE REGIONAL COMMISSIONER
Discussion: This nose comes forward on appeal from the order
of the District Director, Detroit, Michigan, dated July 10, 1958,
denying the application on the grounds that the applicant was subject to deportation under section 241 (a) (2) of the Immigration
and Nationality Act for entry without inspection by reason of his
entry in 1940 upon a false claim to United States citizenship, and
under section 241(a) (1) of the act by reason of his excludability
at time of such entry because of lack of required documents.
The application for creation of a record of admission was filed
prior to the enactment of the Act of August 8, 1958 (72 Stat.
548), which amended section 249 of the Immigration and Nationality
Act. The statute does not specifically provide that an application
pending at time of enactment be determined in accordance with the
provisions of the amended law. However, it is considered that, in
the proper exercise of the discretion expressed in the present law,
167
all applications pending on August 8, 1958, must be determined on
the basis of the standards set forth by Congress as of that date.
Applicant was born in Aberdeen, Scotland, no November 24,
1912, his parents being F P and C , both aliens
at that time. His father died on February 21, 1917. On August 8,
1922, his mother (deceased in 1936) was married in Detroit, Michigan, to applicant's stepfather, A B , a native-born United
States citizen. Upon her marriage, she derived United States citizenship pursuant to section 1994, Revised Statutes. Applicant was
married in 1934 to a native-born United states citizen and has 4
native-born children, two of whom are presently in the United States
Armed Forces.
Applicant claims that he originally entered the United Staten in
1920 but no record of any entry by him can be located. A record
has been located indicating that applicant and his mother were
debarred from entry into the United States on August 24, 1922, on
the grounds that they were likely to become public charges. They
were then destined to (A B ) a friend, who is presumably
applicant's stepfather to whom applicant's mother was married on
August 8, 1922. There is no explanation for the mother's attempted
entry as an alien rather than as a citizen, nor her intended destination to a friend rather than to her United States citizen husband.
It is furthermore apparent that this debarment occurred in connection with a visit to Canada, inasmuch as a school record of the
Board of Education, Grosse Pointe, Michigan, indicates that applicant attended school there from September 19, 1921, through February 21, 1926. He has established continuous residence in the
United States from at least 1922 and that he was absent from the
United States thereafter on only one occasion on a short trip to
Canada. While there is contradictory testimony by applicant as to
the date of reentry into the United States, it occurred prior to June
28, 1940.
Under the provisions of section 249, as amended, a record of lawful admission may, in the discretion of the Attorney General, be
made as of the date of approval of his application or, if entry
occurred prior to July 1, 1924, as of the date of such entry, in
the case of any alien who makes application therefor, and who
establishes that he:
(1) entered the United 2tatca prior to Juno us, 1010, and no record of such
entry exists;
(2) has had his residence in the United States continuously since such
entry;
(3) is not Inadmissible under section 212(a) Insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens;
(4) Is not ineligible to citizenship, and
(5) Is a person of good moral character.
168
An applicant for adjustment of status under section 249, as
amended, is required by the statute to establish good moral character. This need not be established for any required period of
time hot the standards set forth in section 101(f) should be taken
into consideration, along with other factors, in determining whether
the requirement of good moral character has been met.
The applicant has established that he is not inadmissible to the
United States under section 212(a) as a member of one of the classes
enumerated above, that he is a person of good moral character and
is not ineligible to citizenship.
The applicant alleges entry into the United States in 1920 and
continuous residence here since that time. He has presented evidence to establish his claim, but he has been absent from the United
States for brief periods on two occasions, one in August 1922,
and again in 1940, but prior to June 28 of that year. An alien
who has been absent from the United States at any time since the
entry upon which his application is based may be found to have
resided continuously in the United States since the date of his
original entry if his absence was temporary and his principal actual dwelling place in fact remained in the United States during
the entire period of his absence. However, a departure from the
United States as a result of exclusion or expulsion proceedings
breaks the continuity of residence for the purpose of section 249,
regardle.5, of the period of time the alien is outside the United
States after such departure. Therefore, the applicant's continuous
residence in the United States was broken on August 24, 1922,
when he was excluded and deported.
He has established that he has subsequently resided in the United
States since September 5, 1922. His temporary absence in 1940
is not considered to have broken the continuity of that residence.
He has established his eligibility for the creation of a record of
lawful admission under section 249, as amended, as of a date prior
to July 1, 1924. The applicant has no recollection of his absence
from the United States in 1922 and cannot give the date of his
reentry. Therefore, a record of entry for lawful admission for
permanent residence will be created as of September 5, 1922, since
he has established continuous residence from at least that date.
Order: It is ordered that the appeal of J—C P— from
the denial of the district director of his application for creation of
a record of lawful admission for permanent residence be sustained
and that a record of his lawful admission for permanent residence
be created as of September 5, 1922.
169
582713-61-13
