Interim Decision #2042

Interim Decision #2042

MATTER OF SALVIEJO

In Deportation Proceedings

A-19173484

Decided by Board April 17, 1970

Application for a waiver of the visa requirements under section 211(b) of

the Immigration and Nationality Act, was properly denied since respondent, a native and citizen of the Philippines, who lived from August 1947

until November 1958 in Guam where he held various jobs as a laborer,

sales clerk, stock clerk, storekeeper and gas station attendant, is classifiable as a contract laborer and not entitled to the presumption of lawful

permanent residence under 8 CFR 9.2(j) [now 8 CFR 101.1 (i)]; and further, since his actual place of residence from the time he left Guam in

1958 until he entered the United States in 1968 (with the exception of 11

months spent in Viet Nam) was in the Philippines, where he acquired a

home and farm which he still owns, such residence was not temporary so

as to constitute at the time of his entry to the United States in 1968 a return from a temporary visit abroad.

CHARGE :

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2)]—Visitorremained longer.

ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Jay Segal

Trial Attorney

(Brief filed)

William C. Wunsch, Esquire

351 California Street

San Francisco, California 94104

(Brief filed)

Also of counsel:

Normal Stiller, Esquire

995 Market Street

San Francisco, California 94103

The case comes forward on appeal from the order of the special inquiry officer denying respondent's application pursuant to

section 211 (b) of the Immigration and Nationality Act' for a

Section 211(b) of the Act, 8 U.S.C. 1181(b) provides:

Notwithstanding the provisions of section 212(a) (20) of this Act in such

cases or in such classes of cases and under such conditions as may be by

regulations prescribed, returning resident immigrants, defined in section

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Interim Decision #2042

waiver, nunc pro tune, of the documentary requirements for admission as set forth in section 212(a) (20) 2 of the Act. Respondent was granted voluntary departure in lieu of deportation, with

a further order that if he failed to depart within 30 days, he be

deported to the Republic of the Philippines on the charge contained in the order to show cause.

The respondent is a 49-year-old male alien, a native and citizen

of the Republic of the Philippines, who was last admitted to the

United States at Seattle, Washington -on March 9, 1968, being

then admitted as a visitor for pleasure. He did not leave within

the time required and at the deportation hearing he was found

deportable as charged.

The respondent asserts that his entry into the United States on

March 9, 1968 was not an entry as a visitor but rather as a returning resident immigrant and that he was entitled to the

waiver applied for. A returning resident immigrant is defined in

section 101(a) (27) (B), of the Act, 8 U.S.C. 1101(a) (27) (B). 2

Underthispovflawnetbigforawve

under section 211 (b) of the Act must establish first that he was

admitted to the United States for permanent residence, and second that he is returning from a temporary visit abroad. The special inquiry officer did not make a definitive finding as to the first

requirement but denied the waiver on the basis that the respondent was not returning from a temporary visit abroad when he

entered the United States on March 9, 1968. We will consider

both questions.

Respondent lived and worked in Guam from August 1947 until

November 1958. He contends that under the provisions of 8 CFR

101(a) (27) (B), who are otherwise admissible may be readmitted to the

United States by the Attorney General in his discretion without being required to obtain a passport, immigrant visa, reentry permit or other documentation.

2 Section 212(a) (20) of the Act, 8 U.S.C. 1182(a) (20) provides:

(a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission

into the United States:

(20) . . . any immigrant who at the time of application for admission is

not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by

this Act, and a valid unexpired passport, or other suitable travel document,

or document of identity and nationality

Section 101: (a) As used in this Act— * * (27) The term "special immigrant" means— * * * (B) an immigrant lawfully admitted for permanent

residence, who is returning from a temporary visit abroad.

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Interim Decision #2042

4.2 (j) 4 (now 8 CFR 101.1(i) ), he acquired permanent residence

status by reason of his residence in Guam. We will later consider

this contention at length. Assuming arguendo that the respondent

was a permanent resident, was he returning from a temporary

visit abroad when he entered the United States on March 9,

1968? We agree that the special inquiry officer that he was not.

These are the pertinent facts.

During respondent's eleven years in Guam he returned to the

Philippines on three occasions, each time for a month's vacation.

He was married at that time and his wife and their two children

resided in the Philippines. He last returned to the Philippines in

November 1958 on a 30 day reappointment leave. The record is

not clear as to whether his job in Guam, which was that of a salesclerk at the time he left, had been terminated prior to or after

he left, but the fact is that he did not have a job in Guam to

which he could return. He testified that he made several attempts

during the next few years to obtain employment in Guam, by contacting the Army personnel authorities in the Philippines and by

corresponding with two friends of his who had remained in

Guam. He also wrote to the Army personnel office in Guam. He

was unsuccessful. There is no evidence he made any further attempts after 1962. In the meantime he separated from his wife

and went through a marriage ceremony with another woman,

whom he considers his wife, although he did not obtain a divorce

from his first wife until March 1969, in Reno, Nevada.

After a month after respondent returned to the Philippines in

November 1958 he went to work assisting his brother-in-law who

is a tinsmith. He then operated a handicraft store from 1962 to

1964. He worked in Viet Nam, in what capacity is not shown, for

11 months in 1966 and 1967. Respondent testified that he ac4 8 CFR 4.2(j) provided (effective January 31, 1955, Federal Register, December 8, 1954)

Presumption of lawful admission. An alien of any of the following described classes shall be presumed to have been lawfully admitted for permanent residence within the meaning of the Immigration and Nationality Act

(even though no record of his admission can be found, except as otherwise

provided in this part). ...

(j) Aliens admitted to Guam. (i) 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 Guamanian Immigration

Service, records of the Navy or Air Force, or records of contractors of those

agencies, other than as a contract laborer, [emphasis supplied] 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.

559

Interim Decision #2042

quired a house and a farm in the Philippines which he still owns

(Tr. of Hearing, p. 42). With the exception of the 11 months

spent in Viet Nam, his actual place of residence for the approximate nine and one-half years from the time he left Guam until he

entered the United States as a visitor, was in the Philippines.

At the time the respondent applied for a visitor's visa he submitted an affidavit to the American Consul at Manila, in which he

stated that he did not desire to immigrate to the United States

but sought only a tourist's visa for a visit of not more than two

months and that he had no intention of remaining in the United

States indefinitely or permanently for any reason whatsoever. He

also swore that he would not seek employment or remain longer

than permitted by his tourist's visa and he would not apply for

adjustment of status to any other category.

In U.S. ex rel. Alt her et al. v. McCandless, 46 F.2d 288 (3 Cir.,

1931), the alien, previously admitted for permanent residence, returned to the United States on a visitor's visa after an absence of

eight and one-half years. Although he had some property and

business connections in the United States and had obtained the

draft board's permission to leave the country, the court held that

he was not returning from a temporary visit abroad. The court

stated that his obtaining a visitor's visa from the American Consul in Switzerland was inconsistent with his claim to be a returning resident.' This point is particularly apropos to the case before us because respondent testified (Tr. of Hearing, p. 73) that

he was aware as early as December 1952 that because of his residence in Guam he could be considered a permanent resident of

the United States.

We held in Matter of G-- ; 8 I. & N. Dec. 249 (BIA, 1959), that

a permanent resident alien who was absent for two years should

be granted a waiver under section 211 (b) of the Act because he

was detained by the German authorities for that period of time

and his absence was thus involuntary.

In U.S. ex rel. Polyrneris et al. v. Trudell, 49 F.2d 730 (2 Cir.,

1931), affirmed 284 U.S. 279 (1932), the immigrants (mother and

daughter) were absent for seven years. Their visit had been

somewhat extended first by the sickness and death of the mother's husband, by the necessity for remaining to settle his estate,

and then by the delay occasioned by their persistent though fruitless attempts to obtain return permits. The court stated at page

732:

What is a temporary visit cannot be defined in terms of elapsed time

5

See also U.S. ex rel. Thomas v. Day, 29 F.2d 485 (2 Cir., 1928).

560

Interim Decision #2042

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.€

In the Po/I -nois case the court found that the aliens' unflagging intent to return to the United States was sown by their unremitting attempts during the last five years of their absence to

return. These facts distinguish it from the instant case in which

for all practical purposes the alien had abandoned after several

years any real intent to return to Guam. 8

In Tejeda v. INS, 346 F.2d 389 (9 Cir., 1965), the immigrant

was absent for sixteen years and then returned with a visitor's

visa. He had failed all during this time to pursue his right to return as a returning resident alien because of reliance on erroneous advice given him by a United States Consul. The court remanded the case, saying that the long period of absence and his

obtaining a nonimmigrant visa would not preclude his being admitted as a returning resident alien if he had actually been misled by a government official.

In a most recent case, Santos v. INS, 421 F.2d 1303 (9 Cir.,

No. 23160, February 13, 1970), the court indicated that one factor to be considered in a section 211 (b) waiver case is whether

the immigrant who claims to be returning from a temporary visit

abroad has any ties in the United States to which he is returning,

such as a family, property, job or other links. In the instant case

the respondent has no ties of any kind in Guam. The Santos case

also involved a citizen of the Philippines who obtained permanent

residence under 8 CFR 4.2 (j) by reason of residence in Guam.

The court stated that when Santos left Guam, taking with him all

his worldly goods in a footlocker, this severed any and all connections he had with Guam.

We conclude from the facts in the instant case that respondent's residence of more than nine years in the Philippines after

Citing U.S. ex rel Lesto v. Day, 21 F.2d 307 (2 Cir., 1927), in which the

court held that ordinarily the intention must be "to return within a period

relatively short, fixed by some early event."

7 See Matter of Carpio, A15848462 (BIA, 1968)

(unieported), a similar

case in which the alien's intent to return was clearly shown by his constant

attempts to reenter the United States.

F Although the court in the Polymeric case found that the aliens were returning from a temporary visit abroad, they were excluded under section

13(a) of the Immigration Act of 1924 (8 U.S.C.A. 213(a)), since the Secretary of Labor did not admit them in his discretion under 8 U.S.C.A. 136(p),

and neither presented an unexpired valid immigration visa or an unexpired

valid permit to reenter in accordance with the regulations promulgated

under section 13 (b) of that Act.

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Interim Decision #2042

leaving Guam cannot be considered a temporary visit, and we affirm the finding of the special inquiry officer that the respondent,

when lie entered the United States at Seattle on March 9, 1968,

was not returning to the United States from a temporary visit

abroad.

We turn our attention now to the question of whether respondent acquired the status of a permanent resident of the United

States under 8 CFR 4.2(j) by reason of his residence in Guam.

Under this section of law he would be presumed to be a permanent resident unless his work in Guam was that of a contract laborer.

He first went to work on Guam for a private employer, and his

first job was as a laborer stacking lumber. He then sold beer and

$oft drinks at a post exchange owned by his employer. A few

months later he went to work as a civilian for the United States

9rmy, working in the post exchange. He was successively a sales.lerk, sales and stock clerk, salesclerk-storekeeper, gas station atendant and finally a salesclerk. His salary ranged from $.35 an

lour to a high of $.97 an hour.

In Matter of C—Y—L, 8 I. & N. Dec. 371 (BIA, 1959), we

[eld that where a person intends employment in a supervisory or

lanagerial capacity in a position for which he is occupationally

ualified and is actually employed in this position, he is not classiable as a contract laborer and is entitled to the presumption of

iwful permanent residence accorded by 8 CFR 4.2(j) (now 8

FR 101.1(i). In that case the alien was a cook. 9

The various jobs performed by the respondent in the instant

tse were neither managerial nor supervisory and did not require

[di administrative and instructive responsibilities as would reove them from the category of being contract labor. 1°

We hold, therefore, that the application for a waiver of visa reirements under section 211 (b) of the Act was properly denied

the basis that the respondent could not qualify as being a pern admitted for permanent residence to the United States under

CFR 4.2 CO, and that his coming to the United States was not

a returning resident immigrant returning from a temporary

;it abroad. Accordingly, the appeal will be dismissed.

ORDER: It is ordered that the appeal be and the same is

'

reby dismissed.

Matter of C Y--L

, supra, discusses at length various occupations

ich can ho considered as "contract labor" and others which cannot be so

—

—

sidered.

'Matter of C—Y—L—, supra.

562

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