Matter of Castro

In Deportation Proceedings

在驱逐程序中

Decided by Board December 4, 1978

由委员会于1978年12月4日裁定

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Sam Williamson, Esquire Bernabe Q. Maldonado 1320 Americana Bldg. Trial Attorney Houston, Texas 7'7002

代表被申请人： 代表移民局： Sam Williamson, Esquire Bernabe Q. Maldonado 1320 Americana Bldg. 庭审律师 Houston, Texas 7'7002

The respondent has appealed the decision of an immigration judge which was rendered on April 13, 1973, and which ordered the respondent's deportation. The appeal will be dismissed. The respondent is a native and citizen of Mexico who was admitted to the United States as an immigrant in 1956. In May of 1963 the respondent returned to Mexico, apparently at the behest of his father. He subsequently purchased land and built a house in Mexico. He resided there with his family until September of 1969;

被申请人已就移民法官于1973年4月13日作出的、下令将被申请人驱逐出境的决定提出上诉。上诉将被驳回。 被申请人是墨西哥本土出生和公民，于1956年作为移民获准进入美国。1963年5月，被申请人返回墨西哥，显然是在其父亲的授意下。他随后在墨西哥购置土地并建造房屋。他与家人在那里居住至1969年9月；

however, he claims to have entered the United States once or twice a month during that period in connection with his job as the manager of a Mexican hotel. While the respondnet has testified that his preference was to remain in the United States, and that he only stayed in Mexico to please his father, he nevertheless substantially severed his connections with the United States for a period of six years and failed to take any steps which might indicate an attempt to retain permanent resident status. After his father's death in 1969, the respondent returned to the United States, evidently with the expectation of residing here indefinitely. Since then he has occasionally returned to Mexico for a visit or vacation. He last entered the United States in March of 1971. Subsequent to his admission as an immigrant in 1956, all of the respondent's entries appear to have been accomplished through the presentation of an alien registration receipt card (Form 1-151). It is on the basis of essentially these facts that the Service charged the respondent with being deportable as an immigrant not in possession of a valid entry document. At his hearing, the respondent denied deportability, contending that section 241(f) of the Immigration and Nationality Act ex- empts him from deportation under the charge contained in the Order to Show Cause. On appeal, the respondent also asserts that there was no finding that he had abandoned his residence in the United Stales, apparently reasoning that he would not be deporta - ble in the absence of such a determination. We shall deal with this latter issue first. As briefly indicated earlier, the respondent was charged with being deportable under section 241(aX1) as an alien excludable at his latest entry under section 212(a)(20) of the Act. Section 212(aX20) mandates the exclusion of any immigrant who in seeking admission does not possess the required documentation. Section 101(aX15) defines "immigrant" to include every alien who cannot qualify as a nonimmigrant. It is clear that the respondent would not have been classifiable as a nonimmigrant, given his intention to reside indefinitely in the United States. See section 214(b), Immigration and Nationality Act. Thus, although the respondent had once been admitted for the purpose of residing permanently, he was still subject to the regulations and the provisions of the Act regarding the qualifications necessary for readmittance. Section 211(b) of the Act is the basic statutory provision author- izing the liberalization of documentary requirements for aliens previously admitted as immigrants. Pursuant to this section and the related regulations, an alien who qualifies as a "returning resident immigrant" may be admitted in the absence of an immi- grant visa or, in an appropriate case, without any other documen-

然而，他声称在该期间每月一两次进入美国，与其作为墨西哥酒店经理的工作有关。尽管被申请人已作证称其偏好是留在美国，且他留在墨西哥只是为了取悦其父亲，但他在六年期间实质上断绝了与美国的联系，且未采取任何可能表明试图保留永久居民身份的步骤。 1969年其父亲去世后，被申请人返回美国，显然期望在此无限期居留。此后他偶尔返回墨西哥访问或度假。他最后一次进入美国是在1971年3月。在1956年作为移民获准入境之后，被申请人的所有入境似乎均通过出示外国人登记收据卡（表格1-151）完成。正是基于基本上这些事实，移民局指控被申请人作为未持有有效入境文件的移民应予驱逐出境。 在听证中，被申请人否认可驱逐性，主张《移民与国籍法》第241(f)条使其免于根据说明理由令中所含指控被驱逐出境。在上诉中，被申请人还主张没有认定其已放弃在美国的居留，显然推理认为在没有此种认定的情况下他不应被驱逐出境。我们将首先处理这一事项问题。 如前文简要指出，被申请人被指控根据第241(aX1)条作为在其最近一次入境时根据法案第212(a)(20)条应予排除的外国人而应予驱逐出境。第212(aX20)条强制排除任何在寻求入境时不持有所需文件的移民。第101(aX15)条将"移民"定义为包括每一个不能符合非移民资格的美国人。鉴于其意图在美国无限期居留，被申请人显然不能被归类为非移民。见《移民与国籍法》第214(b)条。因此，尽管被申请人曾为永久居留目的获准入境，他仍受有关重新入境所需资格的法规和法案条款的约束。 法案第211(b)条是授权对先前作为移民获准入境的外国人放宽文件要求的基本法定条款。根据该条及相关法规，符合"返回居民移民"资格的外国人可在没有移民签证的情况下获准入境，或在适当情况下无需任何其他文件

tation. Under section 101(aX27)(I3), to which section 211(b) refers, a "returning resident immigrant" is defined as "an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad." Although there is an issue as to whether the respondent could qualify as having retained his status as an alien lawfully admitted for permanent residence, 1 it is evident that he cannot be viewed as returning from a temporary visit abroad, and he fails on this ground to satisfy the statutory definition of a "returning resident immigrant." The cases which have construed the phrase "temporary visit" have established several factors which must be taken into consid- eration. First, the duration of the absence has a definite bearing on whether it can be deemed "temporary." See Gamero v. INS, 367 F.2d 123 (C.A. 9, 1966). Cf. Matter of Salviejo, 13 I. & N. Dec. 557 (BIA. 1970) Second, the location of the alien's family ties, property holdings and job all relate to a determination regarding the character of a visit abroad. Santos v. INS, 421 F.2d 1303 (CA. 9, 1970); Matter of Salviejo, supra. Finally, the intention of the alien with respect to both the location of his actual home and the anticipated length of his excursion have been deemed of signifi- cance to this inquiry. U.S. ex rel. Lesto v. Day, 21 le.2d 307 (C.A. 2, 1927); Matter of Montero, Interim Decision No. 2216 (BIA 1973). As indicated, on the facts of this case the respondent cannot be viewed as returning from a temporary visit abroad. Except for his numerous brief business trips to the United States, the respondent remained in Mexico for six years. He severed his ties with the United States, moved his family to Mexico, acquired land, built a house and obtained steady employment there. Thus, regardless of what his ultimate intent might have been, we hold that the respondent's stay in Mexico cannot be deemed temporary. He therefore was not entitled to admission through the presentation of his alien registration receipt card. The respondent nevertheless maintains that he is saved from deportation by the operation of section 241(f) of the Act. By its terms, section 241(f) precludes the deportation of an alien on a charge relating to the procurement of entry or documentation through fraud or misrepresentation, if the alien was "otherwise admissible at entry" and is the spouse, parent or child of a United States citizen or of an alien lawfully admitted for permanent residence. The respondent in this case has two citizen children and therefore clearly satisfies the familial relationship requirement of

。根据第211(b)条所引用的第101(aX27)(I3)条，"返回居民移民"被定义为"一名合法获准永久居留的移民，正从国外临时访问返回。"尽管存在关于被申请人是否符合保留其作为合法获准永久居留外国人身份的问题，1 但显然他不能被视为从国外临时访问返回，且在此理由上他未能满足"返回居民移民"的法定定义。 解释"临时访问"一词的案件已确立若干必须考虑的因素。第一，缺席的持续时间对是否可视为"临时"有确定影响。见 Gamero v. INS, 367 F.2d 123 (C.A. 9, 1966)。参较 Salviejo案，13 I. & N. Dec. 557 (BIA. 1970)。第二，外国人的家庭联系、财产持有和工作的所在地均与关于国外访问性质的认定有关。Santos v. INS, 421 F.2d 1303 (CA. 9, 1970)；Salviejo案，同上。最后，外国人关于其实际住所所在地和预期旅行长度的意图已被认为对本次调查具有重要意义。U.S. ex rel. Lesto v. Day, 21 le.2d 307 (C.A. 2, 1927)；Montero案，临时决定第2216号 (BIA 1973)。 如所示，根据本案事实，被申请人不能被视为从国外临时访问返回。除多次短暂商务旅行前往美国外，被申请人在墨西哥居留六年。他与美国断绝了联系，将家庭迁至墨西哥，购置土地，建造房屋并在那里获得稳定就业。因此，无论其最终意图可能如何，我们认定被申请人在墨西哥的停留不能视为临时。因此他无权通过出示其外国人登记收据卡获准入境。 被申请人仍主张他因法案第241(f)条的适用而免于驱逐出境。根据其条款，第241(f)条禁止以通过欺诈或虚假陈述获取入境或文件的相关指控驱逐外国人，如果该外国人在入境时"在其他方面可予入境"且是美国公民或合法获准永久居留外国人的配偶、父母或子女。本案被申请人有两名公民子女，因此显然满足家庭关系要求

this section. There is some question regarding whether the requi- site misrepresentation exists. However, we need not resolve this issue because we have concluded that the respondent does not meet the "otherwise admissible at entry" qualification of the statute, as construed by prior administrative decisions. In Matter of Lee, 13 I. & N. Dec. 214, 218 (A.G. 1969), the Attorney General interpreted the "otherwise admissible" clause of section 241(f) to require that the alien have completed the adminis- trative screening process necessary for entry as an immigrant. Although the decision in Matter of Lee, supra, was reversed in Lee Fook Chuey v. INS, 439 F.2d 244 (CA. 9, 1970), we have deemed ourselves bound by the Attorney General's position, and we have thus felt constrained to reject the position taken by the Ninth Circuit. See Matter of Mangabat, Interim Decision No. 2131 (81A 1972); Matter of Perez-Echeverria, Interim Decision No. 2200 (BIA. 1973). In this case, the respondent had lost his status as an alien lawfully admitted for permanent residence. Since he had not acquired a nonimmigrant status, he must be viewed as any immigrant alien seeking an initial admission to the United States. The respondent's lawful entry would therefore have required his presentation of a valid immigrant visa. To obtain an immigrant visa, it would have been necessary for the respondent to submit himself to the consular screening process mandated by the Act. Since the respondent has not undergone the required screening for the entry in question, and since the decision in Matter of Lee, supra, makes this element a prerequisite to a favorable determina- tion on the "otherwise admissible" criterion of section 241(0, it is evident that the respondent fails to meet the conditions imposed by that provision. Accordingly, we find that his deportability has been established by evidence that is clear, convincing and unequi- vocal. Having reviewed the record thoroughly, we find that a remand on the issue of voluntary departure is unnecessary. We are satisfied that the respondent is eligible for that relief, and conse- quently we will grant him 30 days voluntary departure on the record before us. ORDER: The appeal is dismissed with respect to the application under section 241(f) of the Immigration and Nationality Act. Further order: The decision of the immigration judge is modi- fied, and the respondent is permitted to depart from the United States voluntarily within 30 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.

本节。关于是否存在必要的虚假陈述存在一些疑问。然而，我们无需解决这一问题，因为我们已经认定，按照先前行政决定的解释，respondent（受访人）不符合法规中“入境时在其他方面可予准许”的资格。 在Matter of Lee, 13 I. & N. Dec. 214, 218 (A.G. 1969)中，总检察长将第241(f)条的“在其他方面可予准许”条款解释为要求该外国人已完成作为移民入境所必需的行政筛查程序。尽管Matter of Lee, supra一案的裁决在Lee Fook Chuey v. INS, 439 F.2d 244 (CA. 9, 1970)中被推翻，但我们认为自身受总检察长立场的约束，因而感到不得不拒绝第9巡回所采取的立场。见Matter of Mangabat, Interim Decision No. 2131 (81A 1972)；Matter of Perez-Echeverria, Interim Decision No. 2200 (BIA. 1973)。 在本案中，respondent已丧失其作为合法获准永久居留的外国人的身份。由于他未取得非移民身份，必须将其视为任何寻求初次入境美国的外国移民。因此，respondent的合法入境本将要求其出示有效的移民签证。为获得移民签证，respondent本有必要接受该法所规定的领事筛查程序。由于respondent未经历所涉入境所需的筛查，且由于Matter of Lee, supra一案的裁决使这一要素成为就第241(0条“在其他方面可予准许”标准作出有利裁定的先决条件，显然respondent未能满足该条款所规定的条件。因此，我们认定，其可驱逐性已由明确、令人信服且毫不含糊的证据所确立。 在彻底审查记录后，我们认定，就自愿离境问题发回重审并无必要。我们确信respondent有资格获得该救济，因此，我们将根据现有记录给予其30天自愿离境。 命令：就根据《移民与国籍法》第241(f)条提出的申请，上诉被驳回。 进一步命令：移民法官的裁决被修改，respondent获准自本命令作出之日起30天内或地区局长可能批准的该期限之后的任何延长期内自愿离开美国；如未能如此离境，respondent应按照移民法官命令的规定被驱逐出境。