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Interim Decision #2371 MATTER OF KANE In Exclusion Proceedings A-10128460 Decided by Board April 1, 1975 The applicant fo:- admission in this case had been admitted for permanent residence with an immigrant visa in 1964. Since 1967, however, she has spent II months of each year living in her native country of Jamaica in an-8 room house which she operates as ,a lodging house Each year she comes to the United States for one month which she spends in a furnished room which she rents by the week. Applicant presented herself for admission as a special immigrant under section 101(a)(27)(B) [now (A)] of the Immigra- tion and Nationality Act and was found excludable under section 212(a)(20) of the Act, for lack of a valid immigrant visa. Looking at the purpose of her departure, the duration of her absence, her home, family and employment ties, it was concluded that she had abandoned her permanent residence in the United States and was therefore excludable on the ground alleged. (Scabs v Bustos, 419 U.S. 65, related to "commuters" returning to employment in the United States and can be distinguished from one who has no tied of residence or employment here.) EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant--no visa ON BEHALF OF APPLICANT: George W. Drake, Esquire 500 Ingraham Building . Miami, Florida 33131 This is an appeal from the immigration judge's order of exclusion. The _appeal will be dismissed. The record relates to a married female alien, 69 years of age; who is a native and citizen of Jamaica. She was lawfully admitted for permanent residence on March 18, 1964 in possession of an immigrant visa. For two years thereafter shw lived with her husband in New York; then she separated from him and moved to Florida. She departed from the United States during 1967. Since that departure she has been absent from the United States for 11 months of each year, during which time she has been living in Jamaica in an eight-room house which she owns and operates as a lodging house. She supports herself from the rents she receives from her lodgers. The purpose of her annual trips to the United States has been to maintain her legal resident status in the United States and for rest. While here, she was rented a furnished room in Florida by the week. 258
Interim Decision #2371 The applicant last presented herself for admission on July 31,1972, in possession of Form 1-151 (Alien Registration Receipt Card), and re- quested admission as a special immigrant, returning from a temporary visit abroad. She was traveling on a 21-day excursion round-trip airplane ticket, originating from and returning to Jamaica. An exclusion hearing was conducted at which the immigration judge held that she was not entitled to admission, because she had no.residence in the United States to which to return. To qualify as a "special immigrant" given dispensation from normal documentation requirements and numerical limitations, an alien must be "an immigrant lawfully admitted for permanent residence, who is returning from a temporary visit abroad." Section 101(a)(27)(B), Immi- gration and Nationality Act. The phrase "lawfully admitted for permanent residence" is defined as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." Section . 101(a)(20), of the Act. The word "permanent" is defined as "a relationship of continuing or lasting nature, as distinguished from temporary, . . ." even though the relationship may be one that can be dissolved eventually at the instance of either the United States or the individual. Section 101(a)(31) of the Act. Lastly, "residence" is defined as "the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent." Section 101(a)(33) of the Act. An Immigration and Naturalization Service regulation provides that in order to be exempted from the normal documentation requirements upon entry, an alien must be returning "to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad." If the temporary absence has not exceeded one year, he may be admitted upon presentation of Form I-151, Alien Registration Re- ceipt Card, 8 CFR 211.1(b)(1). The application of these provisions to the factual situation in the present case, necessitates scrutiny of the recent decision in Saxbe v. Bustos, 419 U.S. 65. In that case the Court was concerned with the meaning of section 101(a)(27)(B) in relation to the aliens who have their homes in Canada or Mexico; and who commute daily, or on a seasonal basis, to places of employment in the United States, without actually establishing a permanent residence in this country. Such aliens are originally admitted as immigrants, and thereafter cross the borders upon presentation of their "green card", pursuant to section 211(b) of the Act. Saxbe v. Bustos posed the question "whether commuters are 'lawfully 259
Interim Decision #2371 admitted for pe'rmanent residence' when they have no actual residence here in this country." The Court found that lawfully admitted for permanent residence" as defined in section 10I(a)(20) of the Act creates a status or privilege which need not be reduced to a permanent resi- dence so long as the status has not been changed; that the status is not changed merely because residence in the United States was never claimed; and that the change in status which Congress had in mind was a change from an immigrant lawfully admitted for permanent residence to the status of a nonimmigrant pursuant to section 247.' The Court noted that the status carried with it several important privileges; viz., the alien might remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States. The Court thus concluded that commuters were immigrants lawfully admitted for permanent residence and that they could be viewed as returning from a temporary absence abroad, admis- sible upon presentation of their Alien Registration Card, despite the absence of a permenent residence in this country. It is noteworthy that in reaching this conclusion the Court discussed at considerable length, and gave great weight to, an administrative practice dating back to at least 1927, of admitting commuters as immi- grants and permitting border-crossing privileges as returning residents afterwards, despite the lack of a permanent residence. The decision commented at length on the recognition of the practice by the Congress, as well as the many harmful political, economic, and social consequences which could flow from a reversal of the long standing rule. It is particu- larly notable that the Court stated "; . . the meaning of the phrase lawfully admitted for permanent residence in section 101(2)(27)(3) of the Act may not be identical to the meaning of the same language in other sections of the Act where the same history of administrative construc- tion is not present." In the light of this language, and the restrictive discussion in Saxbe v. Bustos, there is grave doubt that the Court intended its ruling to have any wider application than to the problem before it, namely, the status of commuters a s returning residents, or that it intended to impeach generally the statutory definitions in sections 101(a)(31) and 101(a)(33) 1 There are othe ways, not noted by the Court, in which status may change. For example, status may be lost if the returning immigrant is found to have reentered illegally by means of a false representation of United States citizenship, Matter of R—, 81. & N. Dec. 598, 599 (Asst. Comr. 1960), or by a surreptitious entry, Matter of M—, 5 I. & N. Dec. 642, 647 (B IA 1954). The status can be lost when an alien departs after a final order of deportation has been entered, Matter of Mosqueda, 14 I. & N. Dec. 55 (E.G. 1972), and by rescission pursuant to section 246 of the Act. It can also be intentionally relinquished, Mauer of Moakru, 14 I. & N. Dec. 899 (BIA. 1913). See also Mauer of &WV, 14 I. & N. Dec. 393 (DD 1973) 260
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