Interim Decision #2371

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 Immigration 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.

Miam,Flord31

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.

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The applicant last presented herself for admission on July 31,1972, in

possession of Form 1-151 (Alien Registration Receipt Card), and requested 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), Immigration 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 .

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 Receipt 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

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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 residence 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, admissible 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 immigrants 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 particularly 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 construction 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)

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Interim Decision #2371

of the Act. Nor do we regard the regulatory force of 8 CFR 211.1(b),

granting exemption from normal documentary requirements and permitting reentry upon presentation of Form 1-151, Alien Registration

Card, to an alien returning to his "unrelinquished permanent residence"

from a "temporary absence abroad," as substantially impaired by the

ruling in Bustos. Rather we interpret that decision as holding that the

commuter, because of the singular history of his status, and the nexus of

his continuing employment in the United States, comes within the

embrace of that regulation.

However, even if Bustos is not read that narrowly, we can see a

marked distinction between the alien admitted to the United States for

permanent residence and having continuing and substantial ties with

this country through his employment, and one' who has no ties of

residence or employment, either because he has abandoned them, or

because he never had them in the first place. We see no reason, from the

holding in Bustos, to accord such an alien the liberal interpretation of 8

CFR 211.1(b) granted the commuter. On the contrary, it is our

view that before he can qualify as a special immigrant under section

101(a)(27) he must be "returning from a temporary visit abroad", and

that before he can receive the Attorney General's waiver of normal

documentary requirements authorized under section 211(b) of the Act,

as implemented by 8 CFR. 211.1(b), it must be shown that he is returning "to an unrelinquished lawful permanent residence in the United

States."

As a general comment, and because the immigration judge took a

different position, it must be stated that we do not regard "the place of

general abode," and the "principal, actual dwelling place in fact, without

regard to intent "(section 101(a)(33) of the Act), as necessarily deter

minative, although it is obViously a useful aid in ascertaining whether

the alien is returning from a temporary absence abroad and may be

scrutinized for that purpose. The definition of "residence" in section

101(a)(33) is clearly relevant to those parts of the statute which require

"residence" as a prerequisite to the grant of a privilege' or waiver, such

as naturalization (section 315ff) but section 101(a)(63) does not purport

to define permanent residence, nor does section 101(a)(27)(B), per se,

condition or limit the grant of permanent resident "status" on the

assumption of a general abode in the 'United States, as the Court clearly

enunciated in Saxbe v. Busies, supra. What must be borne in mind here

is that in the light of Bustos, "unrelinquished lawful permanent residence", as used in 8 CFR 211.1(b), can have reference to something less

than a permanent dwelling place in the United States.

It becomes necessary then to examine the 'factors bearing on a determination whether the alien is returning from a temporary visit abroad.

Historically, the Quota Act of 1921 contained an exception from its

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Interim Decision #2371

provisions for 'aliens returning from a temporary visit abroad," section

2, Act of May 19, 1921 (42 Sta. 5, 8 U.S.C. 229). The Act contained no

definition of "temporary visit," but rules promulgated in accordance

with the statute construed it to mean an absence not exceeding six

months in duration, Rule 2a, Immigration Rules, quoted in U.S. ex rel.

Randazzo v. Tod, 297 F. 214 (CA. 2, 1924); see Lidonnici IT: Davis, 16

F.2d 532 (D.C. Ct. App. 1926). Later rules created a presumption that a

trip exceeding six months was not temporary, but provided that the

presumption could be overcome by the alien. Immigration Rules of

February 1, 1C24, Rule 9, subdivision G, paragraph 1, quoted in U.S. ex

rel. Devenuto v. Curran, 299 F. 206 (C.A. 2, 1924).

The Act of :1924 classified as a nonquota immigrant 2 "an immigrant

previously lawfully admitted to the United States, who is returning

from a temporary visit abroad," section 4(b) of the Act of 1924, 8 U.S.C.

204(b). The accompanying administrative rule dropped the six months

presumption. "An alien claiming to be a nonquota immigrant by reason

of having been previously lawfully admitted to the United States and to

be returning from a temporary visit abroad shall be required to establish such fact to ,the satisfaction of the examining immigration official...." Immigration Rules of July 1, 1925, subdivision I, Rule 3,

paragraph 2, quoted in Serpico v. Trudell, 46 F.2d 669 (D. Vera 1928).

The six months time limitation no longer exists and has relevance only

for historical purposes.

Courts whic.i have considered the issue of what constitutes a "temporary visit abroad" have identified a number of factors. Inasmuch as the

language "returning from a temporary visit abroad" in the current Act

is identical to the language used in prior Acts, the interpretation given

that phrase under those prior acts is relevant. "It is unlikely that the

word 'temporarily,' . . . is subject to inflexible definition, unvarying in

application to all cases." Gamero v. INS, 367 F.2d 123, 126 (C.A. 9,

1966). "What is a temporary visit cannot be defined in terms of elapsed

time alone, when it is of such duration that its temporary character may

reasonably be questioned. Then the intention of the visitor, when it can

be determined, will control." United States ex rel. Polymeris v.

Trudell, 49 F.2d 730, 732 (C.A. 2, 1931). Subjective intent can some-

times .be determined-from examination of such elements as: ,

(1) Purpose for departing. The traveler should normally have a definite reason for proceeding abroad temporarily. See U.S. ex rel

Alther v. McCandless, 46 F.2d 288 (C.A. 3, 1931); examples are

education and professional training, Serpico v. Trudell, supra;

employment for a definite, "albeit extended period," by accepting

a two-year teaching position with a foreign university, Matter of

2

A nonquota immigrant was equivalent to a "special immigrant" in the current Act.

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Guiot, supra; indefinite employment abroad when assigned by

one's United States employer, Matter of Wu, 14 I. & N. Dec. 290,

(RC, 1973), Matter of Manion, 11 L & N. Dec. 261 (DD 1965);

liquidation of assets, Matter of Souqi, 14 I. & N. Dec. 390, (RC

1973).

(2) Termination date. The visit abroad should be.expeeted to terminate "within a period relatively short, fixed by some early event,"

U.S. as rel. Lesto v. Day, 21 F.2d 307, 309 (C.A. 2, 1927); Matter

of Castro, 14 I. & N. Dec. 492 (BIA 1973). If unforeseen circumstances cause an unavoidable delay in returning, the trip

would retain its temporary character, so long as the alien continued to intend to return as soon as his original purpose was

completed. For example, war might inhibit travel or the alien

might be drafted, Serpico v. Trudell, supra; there might be illness, Transatlantica Italiana v. Elting, 66 F.2d 542, 545 (C.A. 2,

1933); there might be a death requiring remaining abroad to settle

an estate, U.S. ex Polymeric -v. Trudell, supra.

(3) Place of employment or actual home. The traveler must intend to

return to the United States as a place of employment or business,

Saxbe v. Bustos, supra; Gooch v. Clark, 433 F. 274 (C.A. 9, 1970),

cert. den. 402 U.S. 995 (1971); Matter of Bailey, 11 I. & N. Dec.

466 (BIA 1965 and 1966); or as an actual home, U.S. as rel. Lesto

w. Day, supra; Matter of D—C—, 3 I. & N. Dec. 519 (BIA 1949).

He must possess the requisite intention to return at the time of

departure, U.S. as rel, Lesto v. Day, supra; and must maintain it

during the course of the visit, Gamero v. INS, supra; Matter of

B--, 9 I. & N. Dec. 211, 213 ff (BIA 1961), reversed on other

grounds, Barrese v. Ryan, 203 F.Supp. 880 (D. Conn. 1962).

In Matter of Quijencio, 15 I. & N. Dec. 95 (BIA 1974) we noted the

significance of the location of the •alien's ties, such as family, job or

property, as an aid in determining the alien's intent. See also Santos v.

INS, 421 F.2d 1303 (C.A. 9, 1970); Matter of Castro, 14 I. & N. Dec.

492, (BIA 1973), reversed on other grounds, Castro-Guerrero v. INS,

503 F.2d 964 (C.A. 5, 1974); Matter of Montero, supra; Matter of Salviejo, 13 I. & N. Dec: 557 (BI4 1970).

Since the number and nature of the ties will vary widely, the question

is often one of determining whether the ties here are reasonably indicative of the alien's continuing desire and intent to return after a temporary absence. Nor will the bare claim of unawareness of possessing the

status of a lawful permanent resident, establish a lack of intent to

abandon, where the allegation falls short of establishing an affirmative

intent to return to the United States after a temporary visit abroad.

Matter of Quijencio, supra. On the other hand, a possible justifiable

reliance on a misstatement of a United States official, contributing to

,

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Interim DecisiOn #2371

extended absence and failure to return, has been held to be a factor that

warrants full exploration. Tejeda v. INS, 346 F.2d 389 (C.A. 9, 1965).

The above factors are obviously interrelated one with another. The

more limited the temporary purpose of the trip abroad, the shorter the

trip, and the stronger the ties in the United States, the more likelihood

that permanent residence status has not been abandoned. The variance

in these factors is well illustrated by Serpico v. Trudell, supra. There a

boy was sent to Italy for schooling, and remained out of the United

States for ':en years attending secondary through medical schools. The

Court noted that he did not intend to remain abroad indefinitely or to

practice his profession there, but intended to return to his home in this

country as soon as he completed his professional training; that he was

returning zo a home which had been kept for him by his father and

mother, doing all the time he was away.

One last general consideration remains. Before weighting the evidence, it must be determined whether the applicant bears the burden of

proof to establish returning residence status, or the Service has the

burden of showing it lacking. By statute, an applicant for adinission

must prove that he is not subject to exclusion under any provision of the

Aet, and that he is entitled to the status claimed, section 291 of the Act.

InKwong Ifai Chew v. Colding , 344 U.S. 590 (1953), the Court held that

a lawful returning resident' alien was "assimilated . . . to the status of a

continuous resident . . ." entitled to a due process hearing. In Chew v.

Rogers (D.C. Cir. 1958) 257 F.2d 607, the court said flatly ". . . if Chew

is to be deprived of his status . . . the Immigration and Naturalization

Service may do so only in proceedings in which the Service is the moving

party, and it bears the burden of proof, . . ." (Emphasis supplied) This

Board has ,already affirmed its awareness of Chew v. Rogers in Matter of

Becerra Miranda, 12 I. & N. Dec. 358 (BIA 1967).

Clearly, under section 291 and sections 235 and 236 of the Act, the

Immigration and Naturalization Service has the authority and responsibility to inquire into the bona fides of a claim to returning resident allien

status.

Similarly, the waiver ate returning resident alien document under

section 211(b) and accompanying regulations, by the Attorney General,

is diseretic nary, and the Government must satisfy itself by inquiry that

favorable •discretion is warranted. However, once a colorable claim to

returning lawful resident alien status is established, it is our view that

Chew v. Rogers places the ultimate burden on the Government if the

alien is to be deprived of that status, either because the status has

changed, er for causes having nothing to do with the 'status [(e.g.subversive activity (Kwong Hai Chew v. Golding, supra)); or smuggling aliens for gain (Becerra,-Miranda, supra)].

—

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CONCLUSIONS

Turning now to the facts of this case, we find that the applicant was

lawfully admitted for permanent residence and sought to retain her

status as a lawful permanent resident of the United States by making

annual trips to the United States. However, her desire to retain her

status, without more, is not sufficient. To have retained her status, it is

required that there have been no change in her status, and that her

visits abroad have been temporary. We find that her status changed

after her 1967 departure.° Beginning in 1967, the applicant's trips

abroad were not for a specified purpose of limited duration. On the

contrary she has been living in Jamaica indefinitely. Her returns were

related solely to the preservation of her Form 1-151 as a reentry

document, rather than the resumption of any permanent resident status

in this country. The returns were brief and technical interruptions of an

absence which has continued in essence since her departure in 1967, as

typified by this last attempted reentry when she traveled here on the

first portion of a round-trip 21-day excursion airplane ticket from and

back to Jamaica. Neither her business nor residence ties are in the

United States. She has no job in the United States. Her husband resides

in the United States but she separated from him and moved to Florida

prior to her 1967 departure. She appears to have a sister in the United

States, but there is no showing that she makes her home with her sister.

During each of her annual trips to the United' States, she has rented

accommodations on a temporary basis in a rooming house in Florida.

She has left some belongings there on occasion, but that alone is not

sufficient. In Jamaica she has a house in which she lives and which

constitutes her place of business. Her offspring all reside in Jamaica.

We find that she is not admissible as a lawfully returning resident

alien and is excludable for lack of a valid immigration document.

ORDER: The appeal is dismissed.

Theodore P. Jakaboski, Alternate Board Member, submits a concurring opinion.

Although the result reached by the majority is correct, there are two

legal points concerning which I respectfully disagree.

First, the treatment of the question of burden of proof in the majority

opinion unnecessarily casts the issue in terms of a choice between two

All of the applicant's absences since her 1967 departure are relevant, because she

must have had lawful permanent resident status at the time of herlaat departure. That

in turn, is dependent on her having maintained it since the time of her first departure. If

any of her absences have been other than temporary in nature, she has lost the status of

lawfully admitted immigrant and would not now have that status.

She testified at the hearing that. she would now May permanently if that is required.

If her status has already changed because her trip or trips were not temporary, she

cannot restore it now.

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Interim Decision #2371

mutually exclusive positions: the applicant bears the burden of proof to

establish returning resident status or the Immigration and Naturalization Service has the burden of showing it lacking. According to law,

section 291 of the Immigration and Nationality Act, the applicant has

the burden of proving that he is not subject to exclusion.. As the dissent

points out, that burden never shifts. In my opinion, the majority order

relies over...y much on the language contained in Chew v. Rogers, 257

F.2d 607 (D. C. Cir. 1958) which states: ". . . if Chew is to be deprived of

his status . . . the . . . Service may do so only in proceedings in which

(it] is the :moving party, and it bears the burden of proof . . ." It is

unlikely that the court wanted to give literal effect to the language

cited. To cl o so would be to turn the statutory burden of proof completely aro.md. It would be far better, in my opinion, to interpret the

holding in .the Chew v. Rogers case to mean that, without subtracting

from the alien's burden of establishing returning resident status, once

the person seeking admission has made out a prima facie showing of

compliance with the statutory burden, he shall be admitted, unless the

Government can show that he is no longer entitled to such status. At

that point :in the proceedings, if the Government seeks to deprive the

alien of such status, it assumes the burden of going forward with its

evidence. This is not the same thing as the Government assuming the

burden of proving the applicant inadmissible. This approach seems to

me to be more in harmony with the intent of the court's decision in Chew

v. Rogers than requiring the Immigration Service to bear the burden of

proving inadmissibility.

Second, •:here does not appear to be sufficient justification for eluding

the plain meaning of section 101(a)(33) of the Immigration and Nationality Act, particularly in light of the legislative history. In report of

the Committee on the Judiciary which accompanied S. 2550, the Chairman of the Committee noted that "The term 'residence' as defined in

section 101(a)(33) means the place of general abode, and the place of

general abode of a person means his principal actual dwelling place in

fact, witholt regard to intent." 3 His exact words now appear in section

101(a)(33) of the Act. The Chairman went, on in his report to say "This

definition is a codification of judicial constructions of the term 'residence'

as expressed by the Supreme Court of the United States in Savorgnan

v. United States, 338 U.S. 491 (1950). It is pertinent that the Savorgnan,

case dealt with a woman who, from 1941 to 1945, had lived with her

husband and his family in Rome, except, for 6 months internment in

Austria. The court said: "Whatever may have been her reasons, wishes,

or intent, her principal dwelling place was in fact with her husband in

L Joint Bearings before the Subcommittees of the Judiciary. Eighty-Second Congress, Firs; Session, on S. 716, H.R. 2379, and H.R. 2816, Bills to revise the laws

relating to mmigration, naturalization, and nationality, Report No. 1137, p. 4.

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Rome . . . Her intent as to her 'domicile' or as to her 'permanent residence' as distinguished from her actual `residence,' principal dwelling

place,' and 'place of abode' is not material . . ." Regardless of our conception of the wisdom or unwisdom of this rule, the Congress nevertheless did adopt the Savorgnan approach in section 101(a)(33) of the Act.

It is of no consequence to distinguish the Savorgnan case on the ground

that it dealt with a nationality claim, for the Immigration and Nationality Act of 1952 uses the same definition for both immigration and

nationality matters.

Louis P. Maniatis, Board Member, submits a separate opinion.

I agree that the appeal must be dismissed.

However, it appears to me that the majority opinion arrives at the

conclusion that the burden of proof in similar type situations rests with

the Service, and cities as its authority the Matter of Beeerra-Miranda,

12 I. & N. Dec. 358 (BIA 1967), which in turn relies greatly on Kwong

Hai Chew v. Captain Sevend Colding, 344 U.S. 590 (SC 1953) and

Kwong Hai Chew v. William P. Rogers, 257 F.2d 606 (DC Clr 1958).

A correct reading of the decisions relied upon indicate that the Supreme Court in the Chew case, and the United States Court of Appeals

in the second Chew case does not support the rationale adopted by the

majority and from which I quote:

". . . the Court held that a lawful returning resident alien was "assimilated" . . . to the

status of a continuous resident . ." entitled to a due process hearing.

However, once a colorable claim to returning lawful resident alien status is established it is our view that Chew v. Rogers places the ultimate burden on the Government

if the alien is to be deprived of that status, either because the status has changed, or for

causes having nothing to do with status."

An analytical reading of the cited cases does not support even a

colorable claim for such a conclusion. The majority took a wide paint

brush and glossed over the true intent and purport of these decisions.

I respectfully submit that what the Supreme Court held in the Chew

case was a narrow and restrictive determination, based on the facts of

that case, that it felt justified in "assimilating" his (Chew) status for

purposes of his constitutional right to due process to that of continuously present alien residents entitled to a hearing at least before an

executive or administrative tribunal. The Court further stated that it

did not reach the question whether or not for immigration purposes

Chew was to be "treated as an entrant alien." It also stated the issue is not

one of exclusion, expulsion or deportation. Nowhere does it, even in its

broadest interpretation, relate to granting an specific class greater

privileges to which they may be entitled to under the immigration laws.

In fact, after the Supreme Court rendered its decision, the United

States Court of Appeals in the second Chew case, Kwong Hai Chew v.

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Rogers, supra, carried the situation one step further, declaring that if

Chew is to be deprived of his status . . . a status described in Kwong

Hai Chew v. Golding, supra, as "assimilated .. to that of an alien

continuously residing and physically present in the United States," the

Immigration and Naturalization Service may do so only in proceedings

in which the Service is the moving party, and bears the burden of proof.

It must be noted that Chew v. Rogers, supra, applies only to the status

described in Chew v. Golding, supra.

If there was any doubt as to the Supreme Court's decision in Chew v.

Golding, supra, it was found necessary by this tribunal to elaborate and

explain the position taken in the Chew case, in a later decision in

Edward J. Shaughnessy v. United States of America, ex rel. Ignatz

Mezei, 345 'U.S. 206 (SC 1953). There the Court held:

"For purposes of the immigration laws, moreover, the legal incidents of an alien's

entry remain unaltered whether he has been here once before or not. He is an entering

alien just the same and may be excluded if unqualified for admission under existing

immigration laws. (underscoring supplied)

To be sure, a lawful resident alien may not captiously be deprived of his constitutional

rights to procedural due process (citations omitted). Only the other day we held that

under some circumstances temporary absence from our shores cannot constitutionally

&wive a returning lanifill resident alien of his right to be hoard (reference is made to

the Chew v. Colding case). On the facts of that ease including reference to Section

307(d)(2) of the Nationality Act of 1940, 8 U.S.C. Section 707(d)(2), we felt justified in

"assimilating." his status for constitutional purposes to that of continously present alien

-

residents en - litled to hearino at least before an executive or administrative tribunaL"

(underscoring supplied)

Due process has never been precisely defined for the reason that it

cannot always mean the same, since procedure must be adapted to the

particular ease. It does not always mean proceedings in court. The

fundamental requirement is an opportunity for a hearing and a defense,

but no fixed procedure is demanded. It does not refer to any general

system of law, but must be construed with reference to historical developments 'and such acts of government as settled maxims of law and

custom.

The only requirement is that procedural due process of law be af-

forded the alien and under section 291 of the Immigration and Na-

tionality Act the burden is upon such alien to prove his entitlement to

enter.

Great stress has been placed, by the majority, on a recent Supreme

Court decision iiiSa.xbe v. Bustos , 419 U.S. 65, which in my opinion is of

little comfort in the instant case. Here the exclusive issue was that of

commuters.

In my opinion Becerra-.Miranda, supra, misconstrues the purport

and tenor of the Chew cases and I would recede from that determination.

268