Matter of Zamora

Interim Decision #2796

临时决定第2796号

In Exclusion Proceedings

在驱逐程序（Exclusion Proceedings）中

Decided by Board June 9, 1980

由委员会于1980年6月9日裁定

The applicant has appealed from a decision of the immigration judge, dated April 18, 1979, excluding him from the United States as an immigrant not in possession of a valid unexpired visa, pursuant to section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(20). The appeal will be dismissed. The applicant is a 24-year-old native and citizen of Mexico who originally entered the United States on March 5, 1968, as a lawful permanent resident. In early 1970, his father became seriously ill, and the applicant, with his brothers and sisters, was sent back to Mexico City to be cared for by his grandmother. The applicant's parents also returned to Mexico in early 1970, and the applicant's father died soon thereafter. The applicant, and his entire family (all of whom had entered the United States as lawful permanent residents), have lived in Mexico since 1970. The applicant did not return to the United States on any occasion during these years. In early April of 1979, the appli-

申请人已就移民法官1979年4月18日的决定提出上诉，该决定依据《移民和国籍法》第212(a)(20)条、8 U.S.C. 1182(a)(20)，以申请人系未持有有效未过期签证的移民为由将其驱逐出美国。上诉将被驳回。 申请人是一名24岁的墨西哥本土出生公民，最初于1968年3月5日作为合法永久居民进入美国。1970年初，其父亲病重，申请人与其兄弟姐妹被送回墨西哥城由其祖母照顾。申请人的父母亦于1970年初返回墨西哥，申请人的父亲不久后去世。申请人及其全家（均曾作为合法永久居民进入美国）自1970年以来一直生活在墨西哥。申请人在这些年间从未返回美国。1979年4月初，申请

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cant attempted to enter the United States as a returning lawful permanent resident. When it appeared to Immigration and Natural- ization Service officers that the applicant Might not qualify for that status, entry was denied, and he was placed in exclusion proceedings. An exclusion hearing was held before an immigration judge on April 18, 1979. The immigration judge found that the applicant had abandoned his residence in the United States, and so could not enter as a returning lawful permanent resident. As the applicant had no valid unexpired immigrant visa, the immigration judge found him exclud- able, and ordered that he be excluded and deported from the United States. The issue on appeal is whether the applicant has in fact abandoned his status as a lawful permanent resident of the United States. If he has, then he was correctly found excludable under section 212(a)(20) of the Act. That section provides for the exclusion of immigrants seeking admission to the United States wbo are not in possession of a valid immigrant visa or other valid entry documents. Section 211(b) of the Act, 8 U.S.C. 1181(b), provides eligibility for a waiver of the docu- mentary requirements for admission for one who can qualify as a "returning resident immigrant" as that term is defined in section 101(a)(27)(A) of the Act, R 1101(a)(27)(A). A "returning resident immigrant" is defined by section 101(a)(27)(A) as "an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad." Hence, the applicant in this case is exclud- able under section 212(a)(20) unless his absence from the United States from 1970 to 1979 can be characterized as a temporary visit abroad. We have determined that it cannot be so characterized, and that the immigration judge was correct in finding that the applicant had abandoned his United States residence. At his exclusion hearing, the applicant testified that his mother had told him that she had no intention of ever returning to the United States. Tr. at 12. There is thus no question that the applicant's mother has abandoned her lawful permanent resident status. We hold that this voluntary and intended abandonment by the mother is imputed to the applicant, who was an unemancipated minor at the time he was sent back to Mexico by his mother, and at the time his mother abandoned her lawful resident status. In Matter of Bauer, 10 I&N Dec. 304 (BIA 1963), it was held that no entry was made by an unemancipated minor upon his return to the United States at the age of 19, 3 years after departing this country in the custody and control of his parents. We reached this conclusion based upon our finding that the alien had had no choice about leaving the United States but rather that he was "under a legal compulsion to follow and accompany his parents." Id. at 308. Because his departure

人试图作为返回的合法永久居民进入美国。当移民和归化局官员认为申请人可能不符合该身份时，入境被拒绝，他随即被置于驱逐程序中。1979年4月18日，一名移民法官举行了驱逐听证。移民法官认定申请人已放弃其在美国的居所，因此不能作为返回的合法永久居民入境。由于申请人没有有效未过期的移民签证，移民法官认定其可被驱逐，并命令将其驱逐并递解出美国。 上诉的争点是申请人事实上是否已放弃其美国合法永久居民身份。如果已放弃，则依据该法第212(a)(20)条认定其可被驱逐是正确的。该条规定，寻求进入美国但未持有有效移民签证或其他有效入境证件的移民应予驱逐。该法第211(b)条、8 U.S.C. 1181(b)规定，符合该法第101(a)(27)(A)条、8 U.S.C. 1101(a)(27)(A)所定义“返回居民移民”资格者，可获得入境证件要求的豁免。第101(a)(27)(A)条将“返回居民移民”定义为“合法获准永久居留、正从国外临时访问返回的移民”。因此，本案申请人依据第212(a)(20)条可被驱逐，除非其1970年至1979年期间离开美国可被定性为国外临时访问。我们已认定不能如此定性，且移民法官认定申请人已放弃其美国居所是正确的。 在驱逐听证中，申请人作证称其母亲曾告诉他，她无意再返回美国。Tr. at 12。因此毫无疑问，申请人的母亲已放弃其合法永久居民身份。我们裁定，母亲的这一自愿且有意放弃归于申请人，申请人在被母亲送回墨西哥时以及在其母亲放弃合法居民身份时均为未解除亲权的未成年人。 在Matter of Bauer, 10 I&N Dec. 304 (BIA 1963) 中，裁定一名未解除亲权的未成年人在父母监护和控制下离境3年后、于19岁返回美国时未构成入境。我们得出这一结论是基于认定该外国人对于离开美国别无选择，而是“在法律强制下跟随并陪同其父母”。Id. at 308。因为其离境

was in this sense involuntary, we held, no "entry" was made upon his return. The issue in Bauer was whether or not an "entry" was made by the alien, not, as in the present case, whether he had retained his lawful resident status upon departing the United States under the custody of his parents. To the extent that Bauer holds that an alien can escape the consequences of an "entry" upon returning from such a long absence simply because he departed under the custody and control of his parents, it is hereby overruled. Bauer was clearly distinguishable from the case upon which it relied, Valenti v. Karnuth, 1 F. Supp. 370 (N.D.N.Y. 1932). In Karriuth, it was held that no "entry" was made by an alien who went on a 1-day school picnic with his high school class, where his brief departure was compelled by school authorities, and by state laws requiring him to attend school. This 1-day departure is a far different thing from the S-year departure of the alien in Bauer. Nor do we believe that the result reached in Bauer can be defended under the modern line of "entry" eases beginning with Rosenberg v. Fleuti, 374 U.S. 449 (1963), which exempted a permanent resident alien from the consequences of an "entry" if his departure could be characterized as "brief, casual, and innocent," and not "meaningfully interruptive" of his resident status. Id. at 462.1 We do not believe that Bauer's 3-year absence could be so characterized. However, to the extent that. Matter of Bauer, supra, can be cited for the general proposition that, because a minor child is compelled to accompany his parents if they depart from the United States, the intent of the parents with regard to the departure (i.e., whether or not they, the parents, intend to abandon their resident status) is imputed to the accompanying child, Bauer still stands. Applying this rule to the applicant in the present case is fatal to his application for admission. The applicant was subject to the custody and control of his mother when he left the United States. His mother did not retain her United States residence when she left this country. When she abandoned her lawful permanent resident status, the applicant also lost his. He therefore cannot now be classified as a returning resident immigrant within the meaning of section 101(a)(27)(A).: As the applicant has abandoned his permanent resident status, he was properly found excludable as an alien not in possession of a valid,

在此意义上非自愿，我们裁定其返回时未构成“入境”。Bauer案的争点是该外国人是否构成“入境”，而非如本案那样，其在父母监护下离开美国时是否保留了合法居民身份。就Bauer案裁定外国人仅因在父母监护和控制下离境，在如此长期缺席后返回时可逃避“入境”后果而言，该案特此被推翻。Bauer案显然区别于其所依据的Valenti v. Karnuth, 1 F. Supp. 370 (N.D.N.Y. 1932) 案。在Karnuth案中，裁定一名外国人与高中班级参加1天学校野餐未构成“入境”，其短暂离境系因学校当局以及要求其入学的州法律所迫。这1天的离境与Bauer案中外国人3年的离境截然不同。我们也不认为Bauer案的结果可以依据始于Rosenberg v. Fleuti, 374 U.S. 449 (1963) 的现代“入境”判例系列得到辩护，该案豁免永久居民外国人“入境”后果，如果其离境可被定性为“短暂、随意和无意”，且并非对其居民身份的“有意义中断”。Id. at 462.1 我们不认为Bauer案3年的缺席可如此定性。 然而，就Matter of Bauer, supra, 可被援引以支持以下一般命题而言，即由于未成年子女在父母离境美国时被迫陪同，父母关于离境的意图（即父母是否打算放弃其居民身份）归于随行子女，Bauer案仍然有效。将这一规则适用于本案申请人对其入境申请是致命的。申请人在离开美国时受其母亲的监护和控制。其母亲在离开美国时未保留其美国居所。当她放弃其合法永久居民身份时，申请人也丧失了其身份。因此，他现在不能被归类为第101(a)(27)(A)条意义上的返回居民移民。 由于申请人已放弃其永久居民身份，他被正确地认定为未持有有效