T

                             MATTER OF T
                   In DEPORTATION Proceedings
                                 A-7420193
                     Decided by Board December 10, 1959

12. ,portability—Section 241(a)(1)—Fraud not. essential to support charge that
    alien was not nonquota as specified in visa.
(1) Showing of fraud is not required to sustain charge under section 241(a)
   (1) of the 1952 act that at time of entry alien was not a nonquota immigrant as specified in his visa.
(2) An alien who abandoned his residence in the United States and departed
  to his native country with the intention of remaining there was not entitled to receive a nonquota immigrant visa as a returning resident and was
  further excludable upon his reenti7. in June 1952 as ineligible to citizenship
  by reason of having previously applied for and obtained an exemption from
  military service.
CHARGES '
 Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Not nonquota immigrant as specified.
         Act of 1952—SectIuu 241(a) (1) (8 ILS.C. 1251(a) (1)]--Alien ineligible to citizenship.

                           BEFORE THE BOARD

  Discussion : This is an appeal from the order of the special inquiry
officer requiring respondent's deportation upon the grounds stated
above. The appeal will be dismissed.
   The respondent, a 33-year-old married male, a native and citizen
of Germany, was admitted to the United States for permanent resi
dance on February 12, 1950. His wife and child remained in Ger
many with the expectation of joining him when Suitable arrange
ments could be made. In October 1950 he registered under th
Selective Service law. He filed a classification questionnaire i
November; from December 1950 to February 1951 his classificatio
was studied by the Board; on January 17, 1951, he was placed i
Class I—A. He apparently requested a reopening of the classific:
ton. The application was denied. He was ordered to report fc
a physical examination on March 13, 1951. On March 7, 1951, ti
respondent appeared before the Board and stated he intended
leave the United States "to go back to Germany" to stay and desire
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a permit to leave the United States. lie testified that lie was told
he could not be given a permit to depart unless he signed SSS Form
1:30 applying for relief from seta ice with the Armed Forces.
  On March 14. 1951, respondent appeared before the Board and
stated lie wanted to sign Stitt Form 13o and "knew what it stated."
The application for relief which is dated Mardi 9, 1931, but purports
to be subscribed and sworn to on March 7, 1!751. contains the information that the applicant for relief understood that he would forever
lose his right to become a citizen and that lie may be prohibited
from entry into the -United States as result of filing the application.
On March 21, 1951, respondent was placed in Class IV—C. On
April 3. 1951, lie departed for Germany. The report executed by
the Service in connection with the departure reveals that the reason
given for going abroad was that the respondent was returning home
and that lie would remain there permanently.
   The respondent explained that he returned to Germany because
of his desire to rejoin his family, for he saw no opportunity of bringing them to the United States because he had been unable to secure
employment which permitted him to accumulate enough money to
bring his family. or to support them here, after their arrival. He
denied that his return to Germany was caused by any fear of military service. Respondent joined his family in Germany and secured
employment there. However, on April 15, 1952, he obtained a nonquota visa on the basis of the allegation that he was returning from
a temporary visit abroad. His wife and child secured second preference visas under the German quota, as the wife and child of an
alien lawfully admitted for permanent residence. The family came
to the United States on June 2, 1952. Respondent admitted that he
left the United States with the intention of residing permanently
in Germany, but that after he had lived in Germany for a while,
he changed his mind because economic conditions had deteriorated
and he furthermore had decided that he did not try hard enough
in the United States.
   In his appeal and at oral argument the respondent stated that he
furnished the United States Consul in Germany with true information and that the issuance of the visa was not induced by any fraud
on his part. He stated he was not informed that his ineligibility to
become a citizen would bar him from returning to the United States.
  It is not necessary to consider whether or not fraud existed in this
case. The charge that the respondent was not in possession of a
proper visa is not based upon the existence of fraud. The respondent. obtained a visa as a "returning resident." He was not a "returning resident." To be a "returning resident," respondent had to
establish that he was "returning from a temporary visit abroad"
(sect-ion 101(a) (27) (B), 8 U.S.C. 1101(a) (27) (B)). Respondent

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 did not depart for a temporary visit abroad. He departed with the
 intention of making his permanent home abroad. He cannot be
 considered as a person who has left for a temporary visit, even
 though shortly after he arrived in foreign territory he changed his
 mind (International Mercantile Marine Co. v. Elting, 

 (CA. 2, 1933); United States ex rel. dither v. McCandless, 

 (C.A. 3, 1931) ; United States ex rel. Lesto v. Day, 

 (C.A. 2, 1927)). The "intention of the departing immigrant must
 be to return within a period relatively short, fixed by some early
 event."
   The fact that respondent obtained a nonquota immigrant visa as
a returning resident is not conclusive upon the Immigration Service
 a:iich is required to reexamine the alien's eligibility to enter the
United States (United States ex rel. Katnic v. Reimer, 

 (S.D.N.Y., 1938); section 221(h), Immigration and Nationality
Act, 8 U•S.C. 1201(h)). The applicant clearly was not a nonquota
immigrant at the time of his application for entry and was, therefore, then inadmissible. This is so even if the respondent furnished
to the consul the information for the visas without any intention
of misleading him. The first charge is sustained.
   We come to the second charge. At the time that the respondent
applied for admission, the law provided that a person was "ineligiMe to citizenship" who was at any time permanently debarred from
becoming a citizen under any law of the United States. The application for relief signed by the respondent was signed at a time when
the Selective Service Act of 1948 provided that any person who had
made application for relief shall thereafter be debarred from becoming a citizen of the United States. The respondent admitted both
that he signed the form and that he was told it would debar him
from becoming a citizen of the United States. He stated that although he was told that he could never be a citizen if he signed, i ,
                                                                      dinotmaerhbcuswagoinktGermysa
   Respondent alleges that when he signed the application whic?
made him ineligible for citizenship, he was not told that he wool
become inadmissible to the United States. If respondent was m
told of this fact, perhaps it was because he was a resident alien at
the law then did not bar the entry of such an alien even though I
was ineligible for citizenship. What made respondent inadmissit
at the time of his entry in June 1952 was the fact that he was
alien ineligible to citizenship and the fact that lie was not a rettn
ing resident. If he had been a returning resident he would in
been admissible_ The fact that respondent was not aware that
was inadmissible when he applied for his visa, or when he app
for admission, is not of importance as far as the charges aru (
cerned. The second charge is sustained.
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   The respondent has applied for suspension of deportation. The
special inquiry officer has properly pointed out that the. respondent
is technically ineligible for the relief. Despite the favorable factors
arising out of the absence of an arrest. record, the good reputation,
the steady employment, the presence of a citizen child, and the, fact
that the departure does not appear to have been to evade service in
the United States, but was based on loneliness and inability to make
a satisfactory adjustment, we are without power to grant the application. The appeal must be dismissed.
   Order : It is ordered that the appeal be and the same is hereby
dismissed.




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