GUIOT

Interim Decision #2214

MATTER OF GUIOT

In Section 223 Proceedings

A-14673904

Decided by District Director July 16, 1973

An alien admitted to the United States for permanent residence who desires to

depart for approximately two years to teach at a university abroad, who is

taking with him his family and all of his possessions, whose principal place of

abode will be abroad during that period, but who firmly intends to thereafter

return to the United States, is eligible for the issuance of a reentry permit

since he still enjoys the status of an alien "lawfully admitted for permanent

residence" as that term is defined in section 101(aX20) of the Immigration and

Nationality Act.

This matter is before me on remand by the Regional Commis-

sioner for reconsideration and a new decision on the application

which was filed on August 21, 1972 and denied by this office on

August 25, 1972.

The previous decision in this case was based on our conclusion

that the applicant would abandon his status as a lawful perma-

nent resident of the United States upon his departure to Canada

where he intended to remain for somewhat less than two years.

During the anticipated stay in Canada the applicant intended to

teach at a university, and would not be required to pay income tax

to the Canadian Government. Additionally, after departure to

Canada the applicant would have no residence, family, real or

personal property, checking or savings account, or other ties which

would require his return to this country. However, during an

interview with an officer of this Service prior to his departure, the

applicant insisted that it was his firm intention to return to the

United States to reside permanently upon completion of his

teaching assignment in Canada.

Thorough review of precedent court and administrative deci-

sions failed to disclose a case which completely paralleled the

application before us. Accordingly, after review of numerous deci-

sions which related in part to determinations regarding abandon-

ment of permanent resident status, we concluded that the defini-

tion of the term "residence" in section 101(aX33) of the Immigra-

tion and Nationality Act, as amended, was applicable in the

instant case. The term "residence" defined therein means, "the

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place of general abode; the place of general abode of a person

means his principal, actual dwelling place in fact, without regard to

intent." (Emphasis added.) Clearly, when the applicant departed to

Canada, severing all material ties with this country, his place of

residence or general abode was in Canada rather than in the

United States. Since intent can play no part when considering the

definition of residence under section 101(a)(33) of the Act, we

concluded that the applicant was not entitled to a permit to

reenter the United States as his departure would constitute

abandonment of his status as a lawful permanent resident of the

United States. Therefore, his application for permit to reenter the

United States was denied.

It now appears, after further study of the statute and considera-

tion of helpful information furnished by other Service offices, that

our decision was in error and the literal definition of the term

"residence" contained in the statute should not be applied to the

word "residence" contained within the term "lawfully admitted for

permanent residence." The latter term is defined in section

101(aX20) of the Act and means, "the status of living 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."

Both the term "residence" and the term "lawfully admitted for

permanent residence" are defined terms under the Act, and we see

no reason to apply the former to construe the latter. In fact, to do

so would compel a holding that every lawful permanent resident

hotel dweller or rooming house lodger who was figuratively "living

out of a hat box" and decided to take a strictly temporary, albeit

extended, trip abroad with all his worldly possessions without

continuing to rent his hotel room or other lodging, had thereby

abandoned his lawful permanent residence in the United States.

That holding would be required in the instant case if we were to

follow this rationale, as the place of residence abroad would be the

"principal, actual dwelling place in fact" since under the definition

of "residence" intention must be disregarded. Under the same

reasoning, even if the instant applicant had rented a home for his

wife and children and left them in the United States while he

worked abroad, his principal, actual dwelling place in fact would be

his temporary foreign residence. Indeed such reasoning could

achieve the absurd result of requiring the denial of every applica-

tion for a reentry permit on the ground that, during the appli-

cant's absence, his principal, actual dwelling place in fact will be

abroad. This certainly was not the intent of Congress.

Section 223 of the Act permits the issuance of a reentry permit

to an alien who "has been lawfully admitted for permanent

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residence," if the applicant desires to visit abroad and return to

the United States to resume that status. The application must be

made in good faith, and the applicant's proposed departure must

not be contrary to the interest of the United States.

Consequently, we believe the definition of "residence" in section

101(aX33) of the Act, which would preclude consideration of the

alien's "intent" in proceeding or remaining abroad, is inapplicable

in determining whether an alien . is qualified for issuance of a

reentry permit or for admission as a returning lawful resident.

Instead, the definition of "lawfully admitted for permanent resi-

dence" in section 101(aX20) is applicable. In applying that defini-

tion—"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"—two determinations are involved. The first is whether

the alien was lawfully admitted as an immigrant or whether he

otherwise lawfully acquired permanent resident status. The sec-

ond is whether such status has not changed.

The status of an alien, for whom the first determination is

favorable, may have changed through rescission of his permanent

resident status under section 246 of the Act, or through adjust-

ment of status to that of a nonimmigrant under section 247 of the

Act. It may have changed if the alien departs when a final order

has been entered in deportation proceedings finding him to be

deportable and ordering him deported. Under such circumstances,

issuance of a document entitling him to readmission as a return-

ing resident would be inappropriate because his departure would

execute the outstanding order of deportation and, therefore, he

could not resume lawful permanent resident status upon return.

Matter of Mosqueda, Int. Dee. No. 2127.) The status of the alien

also may have changed by departure without the intent to return

to the United States (Matter of B—, I. & N. Dec. 211), or by

formulation of an intent to abandon his residence in this country

while abroad.

Use of the definition in section 101(a)(20) rather than the

definition in section 101(aX33) of the Act permits consideration of

the alien's intent in departing or remaining abroad. The alien's

actions, such as claiming nonresident alien status for Federal

income tax purposes, knowing such a claim is inconsistent with

status as a lawful permanent resident for immigration purposes,

may be a consideration in determining intent. In this respect, the

applicant has met the burden. Therefore, we conclude that the

applicant has established satisfactorily his intent to return to

resume his lawful permanent resident status. Accordingly, the

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application for permit to reenter the United States should be

granted.

ORDER: It is hereby ordered that the decision entered in this

case on August 25, 1972 be withdrawn.

It is further ordered that the application for permit to reenter

the United States be, and the same hereby is, granted.

396