Matter of Quijencio

Interim Decision #2319

临时决定第2319号

In Deportation Proceedings

驱逐出境程序

In a decision dated March 13, 1969, the immigration judge found the respondent deportable as charged and ordered his deportation to the Republic of the Philippines. No appeal was taken from that decision. Thereafter, the respondent moved that the proceedings be reopened in order to allow him to show that he had obtained lawful permanent resident status under 8 CFR 4.2(j), promulgated in 19 Fed. Reg. 8055 (December 8, 1954), effective January 3, 1955 (now 8 CFR 101.1(0). At the reopened hearing, the immigration judge found that the respondent was entitled to a presumption of admission for permanent residence under 8 CFR 4.2(j), but he concluded that the respondent had lost such status by operation of law. He granted the respondent the privilege of departing voluntarily from the United States within 31 days in lieu of deportation. The respondent has appealed from that decision. The ap- peal will be dismissed. The respondent is a native and citizen of the Philippines. The record shows that he entered Guam in May 1950 to work for the Air Force as a civilian employee. His original employment was as a laborer, but after six months he was promoted to the position of warehouseman. Thereaf-

在1969年3月13日的决定中，移民法官认定答辩人如所指控可被驱逐出境，并命令将其驱逐至菲律宾共和国。该决定未提起上诉。此后，答辩人提出动议要求重新开启程序，以便其证明已依据8 CFR 4.2(j)取得合法永久居民身份，该规定颁布于19 Fed. Reg. 8055（1954年12月8日），1955年1月3日生效（现为8 CFR 101.1(0)）。在重新开启的听证中，移民法官认定答辩人有权依据8 CFR 4.2(j)享有永久居留准入的推定，但他认定答辩人已因法律实施而丧失该身份。他给予答辩人在31天内自愿离境以代替驱逐出境的特权。答辩人对该决定提出上诉。上诉将被驳回。 答辩人是菲律宾本土出生和公民。记录显示他于1950年5月进入关岛，作为文职雇员为空军工作。其最初的工作是劳工，但六个月后被提升为仓库管理员。此后，

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ter, he attended school and was further promoted to the position of clerk-typist. The respondent held the position of clerk-typist until 1956 when he lost his job due to a reduction in force. After unsuccessfully searching for employment at other air bases, the respondent was transported back to the Philippines at the expense of the United States Government. The respondent resided in the Philippines from 1956 until the end of 1968. He worked at various jobs, married a native and citizen of the Philippines, ard had three children. The respondent did not return to the United States until December 1968, at which time he entered as a nonimmigrant visitor authorized to remain until February 4, 1969. The respondent's wife and children continue to reside in the Philip- pines, as do his mother and his three sisters. The respondent's only close relative in the United States is a brother who is a naturalized citizen. The responder t has no other ties to the United States. 8 CFR 4.2(j) provided for a presumption of lawful admission for permanent residence for:

他上学并进一步被提升为文书打字员职位。 答辩人担任文书打字员职位直至1956年因裁员而失去工作。在其他空军基地求职未果后，答辩人由美国政府出资被送回菲律宾。 答辩人自1956年至1968年底居住在菲律宾。他从事过各种工作，与一名菲律宾本土出生和公民结婚，并育有三个孩子。答辩人直至1968年12月才返回美国，当时他作为非移民访客入境，获准停留至1969年2月4日。 答辩人的妻子和子女继续居住在菲律宾，其母亲和三个姐妹亦然。答辩人在美国唯一的近亲是一名归化公民的兄弟。答辩人与美国无其他联系。 8 CFR 4.2(j)规定了以下人员的合法永久居留准入推定：

An alien who establishes that he was admitted to Guam prior to December 24, 1952, by records, such as Service records subsequent to June 15, 1952, records of the Guamanian immigration Service, records of the Navy or Air Force, or records of contractors of those agencies, other than as a contract laborer, was not otherwise excludable under the act of February 5, 1917, as amended, and who continued to reside in Guam until December 24, 1952, regardless of the period of time for which admitted. The immigration judge concluded that under the tests set forth by us in Matter of C—Y—L—, 8 I. & N. Dec. 371 (BIA 1959), the respon- dent's status as a clerk-typist included certain mental demands which would exclude him from the contract labor category of section 3 of the Act of February 5, 1917. The accuracy of this conclusion is questionable, since the respondent was recruited by the Air Force as a civilian laborer, worked as a laborer for the first six months after his arrival, received promotion to a warehouseman only after a "survey" was con- ducted, and did not assume his duties as a clerk-typist until considerably after his original admission. The determination as to whether the respondent entered Guam as a contract laborer depends on the precise nature and purpose of his original employment, matters which were not developed in'the record. Without more information, we cannot reach a conclusion as to whether the respondent is entitled to the presumption of admission for lawful permanent residence contained in 8 CFR 4.2(j). Nevertheless, we find that a remand will be unnecessary, due to our conclusion that even if the respondent had acquired the presumption of lawful admission under 8 CFR 4.2(j), he would no longer have the status of a lawful permanent resident_ Section 101(a)(20) of the Act defines the term "lawfully admitted for

外国人如通过记录证明其在1952年12月24日之前被准许进入关岛，例如1952年6月15日之后的移民局记录、关岛移民局记录、海军或空军记录，或上述机构的承包商记录，且并非作为合同劳工入境，根据经修正的1917年2月5日法案不存在其他不准入境情形，并继续在关岛居住至1952年12月24日，无论其获准入境的期限长短。移民法官认定，根据我们在Matter of C—Y—L—, 8 I. & N. Dec. 371 (BIA 1959)中确立的检验标准，被申请人作为文书打字员的身份包含某些脑力要求，这将使其被排除在1917年2月5日法案第3条的合同劳工类别之外。这一结论的准确性存疑，因为被申请人是由空军作为平民劳工招募的，抵达后的前6个月作为劳工工作，仅在进行了"调查"之后才被提升为仓库管理员，并且直到其最初入境后相当长一段时间才承担文书打字员的职责。关于被申请人是否作为合同劳工进入关岛的认定，取决于其最初雇佣的确切性质和目的，而这些事项在记录中并未得到充分查清。在没有更多信息的情况下，我们无法就被申请人是否有权享有8 CFR 4.2(j)所载的合法永久居民入境推定得出结论。尽管如此，我们认为没有必要发回重审，因为我们的结论是，即使被申请人根据8 CFR 4.2(j)获得了合法入境的推定，他也不再具有合法永久居民的身份。法案第101(a)(20)条将"合法获准"一词定义为

Interim Decision #2319

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permanent residence" ks meaning "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." (Emphasis supplied.) Section 211(b) of the Act pro- vides 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)(B). A "returning resident immigrant" is defined by section 101(a)(27)(B) as "an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad." The issue in this case is whether the respondent's status has "changed" within the meaning of section 101(a)(20) of the Act. The respondent was absent from the United States for 12 years. Without limiting the circumstances which may be found to effect a "change" in status, we conclude that one test as to whether the respondent has "changed" his status is whether he could have qualified as a "returning resident immigrant" upon his reentry into the United States in 1968 after his absence in the Philippines. It would be incongruous to have a situation where an alien could no longer qualify as a "returning resident immigrant," yet nevertheless could maintain that his status as a lawful permanent resident had not "changed" by virtue of his absence. Com- pare Matter of Antolin, 121.1 N. Dec. 127 (BIA 1967), with Santos v. INS, 421 F.2d 1303 (C.A. 9, 1970), and Matter of Salviejo, 13 I. & N. Dec. 557 (BIA 1970).4 Factors which we use to determine whether an alien qualifies as a "returning resident immigrant" after a "temporary visit abroad" can thus be applied to determine whether the respondent in the present case has "changed" his status. Factors to be considered are (1) the duration of the alien's absence from the United States, (2) the location of the alien's family ties, property holdings, and-job,' and (3) the intention of the alien with respect to both the location of his actual home and the anticipated length of his excursion. Matter of Castro, 14 L & N. Dec. 492 (BIA 1973). The respondent resided in•the Philippines for 12 years after leaving Guam. During this time he never returned to the United States, nor is there evidence that he intended to return, or that he intended his anticipated stay in the Philippines.to be of short duration. His family

“永久居留”的含义是“依据移民法被合法赋予作为移民在美国永久居留的特权之身份，该身份未发生改变。”（着重号为原文所加。）该法第211(b)条规定，对于符合第101(a)(27)(B)条所定义“回美居民移民”资格者，可豁免准入的文件要求。第101(a)(27)(B)条将“回美居民移民”定义为“合法获准永久居留、正从国外临时访问返回的移民”。 本案的争点是答辩人的身份是否在该法第101(a)(20)条的含义内发生了“改变”。答辩人离开美国12年。在不限制可能被认定导致身份“改变”的情形的前提下，我们认定，判断答辩人是否“改变”了其身份的一项检验标准是，他在菲律宾离开后于1968年重新进入美国时，是否本可符合“回美居民移民”的资格。如果出现外国人不再符合“回美居民移民”资格、却仍可主张其合法永久居民身份因离开而未“改变”的情形，那将是自相矛盾的。比较Matter of Antolin, 121.1 N. Dec. 127 (BIA 1967)与Santos v. INS, 421 F.2d 1303 (C.A. 9, 1970)及Matter of Salviejo, 13 I. & N. Dec. 557 (BIA 1970)。4 因此，我们用来判断外国人在“国外临时访问”后是否符合“回美居民移民”资格的因素，可适用于判断本案答辩人是否“改变”了其身份。应考虑的因素是：(1) 外国人离开美国的持续时间；(2) 外国人家庭联系、财产持有和工作的所在地；以及 (3) 外国人关于其实际住所所在地和预期外出时间长度的意图。Matter of Castro, 14 L & N. Dec. 492 (BIA 1973)。 答辩人离开关岛后在菲律宾居住了12年。在此期间他从未返回美国，也没有证据表明他打算返回，或他预期在菲律宾的停留是短期的。其家庭

Interim Decision #2319

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ties, property holdings, and job were all in the Philippines; his only tie to the United States is his citizen brother. Assuming arguendo that the respondent vas entitled to the presumption of lawful admission under 8 CFR 4.2(j), we conclude that his status has "changed" by virtue of his 12-year absiince in the Philippines. The respondent argues that he cannot be said to have intended to abandon his status as a lawful permanent resident because he was not even aware that he had attained that status until recently. The immi- gration judge, apparently relying on some of our language in Matter of Antolin, supra, stated that intent was immaterial to the issue of whether the respondent's status had changed. We believe that this statement requires some qualification. The thrust of some of our language in Matter of Antolin, supra, and Matter of Six s , 11 I. & N. Dec. 171 (BIA 1965), where we cited section 101(a)(83) of the Act, was that intent was not relevant to determining change of status. Nevertheless, many decisions indicate that intent is one factor which should be considered in determining whether an alien has retained lawful permanent resident status. See e.g., U.S. ex rel. Lesto v. Day, 21 F.2d. 307 (C.A. 2, 1927); Gamero v. INS, 367 F.2d 123 (C.A. 9, 1966); Santos v. INS, supra; Matter of Castro, supra; Matter of Montero, 19 I. & N. Dec. 399 (BIA 1973); Matter of Salviejo, supra; Matter ofThlma-Ortiz, 11 L & N. Dee. 414 (BIA 1965); Matter of B—, 9 T. & N. Dec. 211 (MA 1961), rev'd on other grounds, Bar-rese v. Ryan, 203 F. Supp. 880 (D. Conn. 1962); Matter of D—C—, 3 I. & N. Dec. 519 (BIA 1949); Matter of Guiot, 14 I. & N. Dee. 393 (D.D. 1973). The mere fact that the respondent alleges that he never had a specific intent to abandon his permanent resident status, however, does not establish that he had an affirmative intent to return to the United States after a temporary visit abroad. Moreover, the other factors in this case, such as duration of stay and ties, are overwhelming evidence of a "change" in status. See Matter of Castro, supra. The respondent also contends that if he had known of his permanent resident status in 1956, he would not have returned to the Philippines, but rather would have remained in the United States. However, as we stated in Matter of Antolin, supra, we must determine the case on the facts before us, not upon speculation as to what might have happened under different circumstances. We also reject the respondent's claim that the failure of the Govern- ment to inform him of his permanent resident status prevents the Government from denying him such status at the present time. In a somewhat analogous case, the United States Supreme Court recently rejected a petition for United States citizenship based on the Govern- ment's failure to apprise an alien of his right to naturalization. INS v. Hibi, 414 U.S. 5 (1973).

关系、财产和工作都在菲律宾；他与美国的唯一联系是他的公民兄弟。即使假定 respondent 有权根据 8 CFR 4.2(j) 获得合法入境的推定，我们仍认定其身份因在菲律宾 12 年的缺席而“改变”。 Respondent 主张，不能说他有意放弃其合法永久居民身份，因为他直到最近才知道自己已获得该身份。移民法官显然依据我们在 Matter of Antolin, supra 中的部分措辞，称意图对于 respondent 的身份是否改变这一问题无关紧要。我们认为该陈述需要有所限定。 我们在 Matter of Antolin, supra 和 Matter of Six s , 11 I. & N. Dec. 171 (BIA 1965)（其中我们引用了该法第 101(a)(83) 条）中部分措辞的主旨是，意图与判定身份改变无关。然而，许多裁决表明，意图是判定外国人是否保留合法永久居民身份时应考虑的一个因素。参见例如 U.S. ex rel. Lesto v. Day, 21 F.2d. 307 (C.A. 2, 1927)；Gamero v. INS, 367 F.2d 123 (C.A. 9, 1966)；Santos v. INS, supra；Matter of Castro, supra；Matter of Montero, 19 I. & N. Dec. 399 (BIA 1973)；Matter of Salviejo, supra；Matter ofThlma-Ortiz, 11 L & N. Dee. 414 (BIA 1965)；Matter of B—, 9 T. & N. Dec. 211 (MA 1961), rev'd on other grounds, Bar-rese v. Ryan, 203 F. Supp. 880 (D. Conn. 1962)；Matter of D—C—, 3 I. & N. Dec. 519 (BIA 1949)；Matter of Guiot, 14 I. & N. Dee. 393 (D.D. 1973)。 然而，respondent 仅声称他从未有过放弃其永久居民身份的具体意图，这一事实并不能证明他具有在短暂海外访问后返回美国的肯定意图。此外，本案中的其他因素，如停留时间和关系，是身份“改变”的压倒性证据。参见 Matter of Castro, supra。 Respondent 还主张，如果他在 1956 年知道自己的永久居民身份，他就不会返回菲律宾，而会留在美国。然而，正如我们在 Matter of Antolin, supra 中所说，我们必须根据面前的事实来裁决案件，而不是推测在不同情况下可能发生什么。 我们还驳回 respondent 的主张，即政府未告知其永久居民身份阻止政府目前否认其该身份。在一个有些类似的案件中，美国最高法院最近驳回了基于政府未告知外国人其入籍权利而提出的美国公民身份申请。INS v. Hibi, 414 U.S. 5 (1973)。

Interim Decision #2319

临时裁决 #2319

Finally, the respondent contends that the status of lawful permanent resident is comparable to that of citizenship, and therefore cannot be lost except upon a voluntary act of renunciation. The loss of lawful permanent resident status cannot be equated with the loss of citizen- ship. Matter of Antolin, supra; cf. Rabang v. Boyd, 353 U.S. 427 (1957); Manlangit v. INS, 488 F.2d 1073 (C.A. 4, 1973). The result reached by the immigration judge was correct. The appeal will be dismissed. ORDER: The appeal is dismissed. Further order: Pursuant to the immigration judge's order, the re- spondent is permitted to depart from the United States voluntarily within 31 days from the date of this order or any extension beyond that time as may be granted by the district director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order.

最后，respondent 主张，合法永久居民身份与公民身份相当，因此除非自愿放弃行为，否则不能丧失。合法永久居民身份的丧失不能等同于公民身份的丧失。Matter of Antolin, supra；cf. Rabang v. Boyd, 353 U.S. 427 (1957)；Manlangit v. INS, 488 F.2d 1073 (C.A. 4, 1973)。 移民法官得出的结果正确。上诉将被驳回。 命令：上诉驳回。 进一步命令：根据移民法官的命令，respondent 获准在本命令之日起 31 天内或地区局长可能批准的超过该时间的任何延长期内自愿离开美国；如未如此离开，respondent 应按照移民法官的命令被驱逐出境。