Interim Decision #2319

Interim Decision #2319

MATTER OF QUIJENCIO

In Deportation Proceedings

A-17862478

Decided by Board September 26, 1974

Respondent claimed lawful permanent resident status under 8 CFR 4.2(j), promulgated in

19 Fed. Reg. 8055 (December 8, 1954) effective January 3, 1955, (now 8 CFR 101.1(i), as

an alien who was admitted to Guam prior to December 24, 1952. Even if respondent had

attained such status he lost it by operation of law. Respondent could only qualify as a

"returning resident immigrant" under section 101(a)(20) of the Immigration and Nationality Act if such status had not changed. Respondent's absence from the United

States for 12 years between 1956 and 1968 effected such a change of status.

CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(20)]--Nonimmigrant.

-remainedlonger than permitted.

ON BEHALF Or RESPONDENT:

Robert 0. Wells, Jr., Esquire

2801 Seattle First National Bank Building

Seattle, Washington 98154

In a decision dated March 13, 1969, the immigration judge found the

respondent deportable as charged and ordered his deportation to the

Republic of the Philippines. No appeal was taken from that decision.

Thereafter, the respondent moved that the proceedings be reopened

in order to allow him to show that he had obtained lawful permanent

resident status under 8 CFR 4.2(j), promulgated in 19 Fed. Reg. 8055

(December 8, 1954), effective January 3, 1955 (now 8 CFR 101.1(0). At

the reopened hearing, the immigration judge found that the respondent

was entitled to a presumption of admission for permanent residence

under 8 CFR 4.2(j), but he concluded that the respondent had lost such

status by operation of law. He granted the respondent the privilege of

departing voluntarily from the United States within 31 days in lieu of

deportation. The respondent has appealed from that decision. The appeal will be dismissed.

The respondent is a native and citizen of the Philippines. The record

shows that he entered Guam in May 1950 to work for the Air Force as a

civilian employee. His original employment was as a laborer, but after

six months he was promoted to the position of warehouseman. Thereaf95

Interim Decision #2319

ter, he attended school and was further promoted to the position of

clerk-typist.

The respondent held the position of clerk-typist until 1956 when he

lost his job due to a reduction in force. After unsuccessfully searching

for employment at other air bases, the respondent was transported back

to the Philippines at the expense of the United States Government.

The respondent resided in the Philippines from 1956 until the end of

1968. He worked at various jobs, married a native and citizen of the

Philippines, ard had three children. The respondent did not return to

the United States until December 1968, at which time he entered as a

nonimmigrant visitor authorized to remain until February 4, 1969.

The respondent's wife and children continue to reside in the Philippines, as do his mother and his three sisters. The respondent's only close

relative in the United States is a brother who is a naturalized citizen.

The responder t has no other ties to the United States.

8 CFR 4.2(j) provided for a presumption of lawful admission for

permanent residence for:

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 the

Guamanian immigration Service, records of the Navy or Air Force, or records of

contractors of those agencies, other than as a contract laborer, 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.

The immigration judge concluded that under the tests set forth by us

in Matter of C—Y—L—, 8 I. & N. Dec. 371 (BIA 1959), the respondent's status as a clerk-typist included certain mental demands which

would exclude him from the contract labor category of section 3 of the

Act of February 5, 1917. The accuracy of this conclusion is questionable,

since the respondent was recruited by the Air Force as a civilian

laborer, worked as a laborer for the first six months after his arrival,

received promotion to a warehouseman only after a "survey" was conducted, and did not assume his duties as a clerk-typist until considerably

after his original admission.

The determination as to whether the respondent entered Guam as a

contract laborer depends on the precise nature and purpose of his

original employment, matters which were not developed in'the record.

Without more information, we cannot reach a conclusion as to whether

the respondent is entitled to the presumption of admission for lawful

permanent residence contained in 8 CFR 4.2(j). Nevertheless, we find

that a remand will be unnecessary, due to our conclusion that even if the

respondent had acquired the presumption of lawful admission under 8

CFR 4.2(j), he would no longer have the status of a lawful permanent

resident_

Section 101(a)(20) of the Act defines the term "lawfully admitted for

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permanent residence" ks meaning "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." (Emphasis supplied.) Section 211(b) of the Act provides for a waiver of the documentary requirements for admission for

one who can qualify as a "returning resident immigrant" as that term is

defined in section 101(a)(27)(B). A "returning resident immigrant" is

defined by section 101(a)(27)(B) as "an immigrant, lawfully admitted for

permanent residence, who is returning from a temporary visit abroad."

The issue in this case is whether the respondent's status has

"changed" within the meaning of section 101(a)(20) of the Act. The

respondent was absent from the United States for 12 years. Without

limiting the circumstances which may be found to effect a "change" in

status, we conclude that one test as to whether the respondent has

"changed" his status is whether he could have qualified as a "returning

resident immigrant" upon his reentry into the United States in 1968

after his absence in the Philippines. It would be incongruous to have a

situation where an alien could no longer qualify as a "returning resident

immigrant," yet nevertheless could maintain that his status as a lawful

permanent resident had not "changed" by virtue of his absence. Compare Matter of Antolin, 121.1 N. Dec. 127 (BIA 1967), with Santos v.

INS, 421 F.2d 1303 (C.A. 9, 1970), and Matter of Salviejo, 13 I. & N.

Dec. 557 (BIA 1970).4

Factors which we use to determine whether an alien qualifies as a

"returning resident immigrant" after a "temporary visit abroad" can

thus be applied to determine whether the respondent in the present case

has "changed" his status. Factors to be considered are (1) the duration

of the alien's absence from the United States, (2) the location of the

alien's family ties, property holdings, and-job,' and (3) the intention of

the alien with respect to both the location of his actual home and the

anticipated length of his excursion. Matter of Castro, 14 L & N. Dec.

492 (BIA 1973).

The respondent resided in•the Philippines for 12 years after leaving

Guam. During this time he never returned to the United States, nor is

there evidence that he intended to return, or that he intended his

anticipated stay in the Philippines.to be of short duration. His family

' Examples of other situations in which we have stated that status has been "changed"

are: where an alien has his status adjusted from that of an immigrant to that of a

nonimmigrant, Matter of S—, 6 I. & N. Dec. 392 (BIA 1954; A.G. 1955); Matter of

M—P---, 9 I. & N. Dec. 747 (BIA 1962); where an alien leaves the United States under an

order of exclusion or deportation, Matter ofIqat, 10 L & N. Dec. 460 (BIA 1964); where an

alien is involuntarily repatriated to a foreign country in accordance with law, Matter of

T—, 6 I. & N. Dec. 778 (BIA 1955); where the alien was removed from the United States

at his own request at Government expense, Mattes of Marcos, 11 I. & N. Dee. 740 (BIA

1966).

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ties, property holdings, and job were all in the Philippines; his only tie to

the United States is his citizen brother. Assuming arguendo that the

respondent vas entitled to the presumption of lawful admission under 8

CFR 4.2(j), we conclude that his status has "changed" by virtue of his

12-year absiince in the Philippines.

The respondent argues that he cannot be said to have intended to

abandon his status as a lawful permanent resident because he was not

even aware that he had attained that status until recently. The immigration judge, apparently relying on some of our language in Matter of

Antolin, supra, stated that intent was immaterial to the issue of

whether the respondent's status had changed. We believe that this

statement requires some qualification.

The thrust of some of our language in Matter of Antolin, supra, and

Matter of Six s , 11 I. & N. Dec. 171 (BIA 1965), where we cited section

101(a)(83) of the Act, was that intent was not relevant to determining

change of status. Nevertheless, many decisions indicate that intent is

one factor which should be considered in determining whether an alien

has retained lawful permanent resident status. See e.g., U.S. ex rel.

Lesto v. Day, 21 F.2d. 307 (C.A. 2, 1927); Gamero v. INS, 367 F.2d 123

(C.A. 9, 1966); Santos v. INS, supra; Matter of Castro, supra; Matter of

Montero, 19 I. & N. Dec. 399 (BIA 1973); Matter of Salviejo, supra;

Matter ofThlma-Ortiz, 11 L & N. Dee. 414 (BIA 1965); Matter of B—, 9

T. & N. Dec. 211 (MA 1961), rev'd on other grounds, Barrese v. Ryan,

203 F. Supp. 880 (D. Conn. 1962); Matter of D — C— , 3 I. & N. Dec. 519

(BIA 1949); Matter of Guiot, 14 I. & N. Dee. 393 (D.D. 1973).

The mere fact that the respondent alleges that he never had a specific

intent to abandon his permanent resident status, however, does not

establish that he had an affirmative intent to return to the United States

after a temporary visit abroad. Moreover, the other factors in this case,

-

such as duration of stay and ties, are overwhelming evidence of a

"change" in status. See Matter of Castro, supra.

The respondent also contends that if he had known of his permanent

resident status in 1956, he would not have returned to the Philippines,

but rather would have remained in the United States. However, as we

stated in Matter of Antolin, supra, we must determine the case on the

facts before us, not upon speculation as to what might have happened

under different circumstances.

We also reject the respondent's claim that the failure of the Govern-

ment to inform him of his permanent resident status prevents the

Government from denying him such status at the present time. In a

somewhat analogous case, the United States Supreme Court recently

rejected a petition for United States citizenship based on the Government's failure to apprise an alien of his right to naturalization. INS v.

Hibi, 414 U.S. 5 (1973).

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Finally, the respondent contends that the status of lawful permanent

resident is comparable to that of citizenship, and therefore cannot be

lost except upon a voluntary act of renunciation. The loss of lawful

permanent resident status cannot be equated with the loss of citizenship. Matter of Antolin, supra; cf. Rabang v. Boyd, 353 U.S. 427 (1957);

Manlangit v. INS, 488 F.2d 1073 (C.A. 4, 1973).

The result reached by the immigration judge was correct. The appeal

will be dismissed.

ORDER: The appeal is dismissed.

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily

within 31 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.

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