Interim Decision *1710

Interim Decision *1710

MATTER of

Awror.rx

In Deportation Proceedings

A-13784760

Decided by Board February 17, 1967

Respondent, a native and citizen of the Philippine Islands, who prior to December 24, 1952, entered Guam where he was employed as a qualified medical

technician and who continued to reside in Guam until his final departure

therefrom in 1957, .notwithstanding his temporary absences therefrom during

that period, is entitled to the presumption of lawful permanent residence under

8 MR 4.2 ()) [now 101.1 (1)] ; however, since respondent voluntarily departed

Guam to reside in the Philippine Islands, where he has resided continuously since 1957 until 1905 and where be has gained permanent roots by his

own voluntary acts, he cannot be regarded as still possessing a claim to permanent residencifinasmucla as his status has changed.

OrrAnam:

Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)7Remained

longer—Visitor.

ON BEHALF OP BESPONDENT

ON BEHALF or SERUM :

Dan P. Daullov, Esquire

R. A. Vielhaber

1101 Dexter Horton Bldg.

Seattle, Washington 98104

(Brief filed)

Appellate Trial Attorney

B. G. Greenwald

Trial Attorney

(Brief filed)

The case comes forward on appeal from the order of the special

inquiry officer dated September 15, 1966 finding the respondent deportable on the charge contained in the order to show cause, granting

him the privilege of voluntary d4arture in lieu of deportation with

the further order that if the respondent failed to depart when and

as required, he be deported to the Republic of the Philippines on the

charge contained in the order to show cause.

The record relates to a native and citizen of the Philippine Islands,

about 51 years old, male, who last entered the United States on

April 10, 1965, as a nonimmigrant visitor for pleasure. He was found to

have been gainfully employed since October 18, 1965 in violation of his

status and was granted until November 8, 1965 to depart. He has re127

Interim Decision #17110

mined in the United States beyond the period authorized for his

departure. After a hearing an order was issued November 19, 1965

finding him deportable and granting him voluntary departure or

ordering him deported in the event he did not depart as directed. No

appeal was taken from this decision. A motion to reopen was granted

May 12, 1966 in order to permit the respondent to present additional

evidence that he comes within the provisions of S CFR 4.2(j) promulgated December 8, 1954, effective January 3, 1955, as a person who

acquired lawful permanent residence status as a result of residence in

Guam.

At the reopened hearing it was developed 'that the respondent

enlisted in the United States Army at Camp Murphy, Philippine

Islands on February 19, 1946 and was honorably separated May 23,

1947. Prior to leaving the armed forces, he received a letter from the

Army Office of the Surgeon dated April 23, 1947 recommending him as

a laboratory technician who had received sixteen weeks training in the

army in that category and had previously been a civilian employee of

the army in the same capacity. A letter from the medical director of the

respondent's employer dated December 8, 1948 stated that the respondent had been associated with the medical department at Guam.sines

November 4 1947 and recommended him as a qualified medical laboratory technician at any institution having complete facilities of a

clinical laboratory.

Evidence produced at the hearing established that the respondent

was employed at Guam as a medical technician since October 1947 and

since March 1953 as a senior medical technician until October 6, 1956.

The employment was continuous except for temporary visits to the

Philippine Islands. He testified that before returning to the Philippines from Guam in 1957, he applied to the Immigration Service for

permanent residence, but his application was not granted. No record

of his application could be located.

The regulation upon which the respondent rests his claim to having

been granted lawful permanent residence in the United States, 8

CFR 4.2(j), relates to aliens admitted to Guam prior to December

24, 1952 who can establish by records, either throe government

agencies or contractors of government agencies, that they were admitted other than as a contract laborer and were 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 they were admitted. This regulation was

subsequently amended October 23, 1956 to exclude from its provisions

those aliens who had been, after December 24, 1952; admitted or read-

128

Interim -Decision *1710

miffed to Guam as nonimmigrants. The present regulations incorporate these provisiong in 8 CFR 101.1(i).

The controlling precedent in these circumstances is •.Matter of

C—r—L—, 8 I. & N. Dec. 371 (1959). We agree with the special

inquiry officer that the respondent qualified under the original provisions of 8 CFR 4.2(j) because the work he performed required mental

rather than merely manual effort as its dominant element and therefore he did not come under the contract laborer bar of the regulations;

he was admitted to Guam prior to December 24, 1952 and can establish

by records of the contractor that he continued to reside in Guam until •

subsequent to December 24, 1952. Inasmuch as he complies with the

conditions of this regulation he should have acquired permanent read.t

dence status under that regulation as of the effective date of the regula-

tion on January 3, 1955. The amendment of October 26, 1956 did not

affect the acquisition of the respondent's status as a permanent resident

under 8 CFR 4.2(j) as originally enacted•on December .8,1954 since

such status had already been vested. Matter of C—Y—L—, supra, p.

379. The respondent was entitled to the presumption that he was a

permanent resident of the United States under 8 CFR 4.2(j) and that

this status continued until his final departure to the Philippine Islands

in October 1957.

Accepting the premise that the respondent had permanent residence

until his departure to the Philippines in 1957, the question remains

whether his absence thereafter, without knowledge that he had such

permanent residence, served to divest him of his permanent residence

status. The evidence shows that when the respondent returned to the

Philippine Islands in 1957 he intended to establish permanent residence there as evidenced by the fact that he resided there with his

.family, was employed there and attended to various private, business

enterprises. The claim of the respondent is that had he known he

was entitled to presumption of permanent residence under 8 CFR

4.2(j) , he would not have returned to the Philippine Islands but would

have brought his family to the United States and resided here. However, we must determine the case upon the facts and not upon mere

speculation.

The term "lawfully admitted for permanent residence" as defined

in section 101(a) (20) of the Immigration and Nationality Act means

the status of having been lawfully accorded the privilege of residing

permanently in the United as an ithmigrant in accordance with

the immigration laws, such status not having changed. The term "resident" as defined in section 101 (a) (33) of the.Act means the place of

general.. abode; the place of general abode of a 'person means his

129

Interim Decision #1740

principal, actual dwelling place in fact, without regard to intent.

Even accepting that the respondent was entitled to presumption of

lawful permanent residence which he acquired by his residence in

Guam, is he in any better position than a person who had immigrated

to the United States for permanent residence with a visa and thereafter has been absent from the United States for as long a period as

the present respondent? We believe that by the nature and length of

the absence, respondent's status has changed as that term is used in

section 101 (a) (20) of the Immigration and Nationality Act and he

can no longer be regarded as a returning resident.

In a similar case involving a Mexican alien who was admitted to

the United States when 7 years old and thereafter was immediately

returned by her father to Mexico where she resided continuously

except for temporary visits, it was held that the alien could not be

regarded as returning to an unrelinquished permanent lawful residence after a temporary absence abroad. Matter of Sias, Int. Dec. No.

1467. The alien, in view of her entry at such a young age and her immediate departure, probably was not aware of her permanent residence status. Nonetheless, it was held she was not admissible at the

time of her application for admission unless in possession of a valid

immigration visa.

Where a person had no knowledge that he had a claim to United

States citizenship at the time he comimtted an expatriating act, he did

not lose •United States citizenship.* The Attorney General was influenced by the Supreme Court's emphasis that where deprivation of

the "precious right of citizenship" is involved, "the facts and the law

should be construed as far as reasonably possible in favor of the

citizen," citing Nishikawa v. Dulles, 356 U.S. 129.2

However, the instant case is not comparable to cases involving the

loss of United States citizenship 'with its accompanying heavy burden.

Here the respondent at best was entitled merely to a presumption of

lawful permanent residence which he gained by his residence in Guam.

Granting that he has been found to be entitled to such status, he is in

no better position than a person who immigrated to the United States

for permanent residence with a visa and who under similar circumstances would have been considered to have abandoned his permanent

residence status. The departure of the respondent to the Philippines

Matter of 0-5---, 9 L & N. Dec. 670 (A.G., 1902) ; Matter of C—A—, 9 L & N.

Dee. 482; Ropers V. Patokoski, 271 5'.2d 858 (9th Cir. 1969).

320 V.S. 118 and Gonzales v. Landon,

I See also Schneiderman v. United States,

350 U.S. 920 where the Supreme Court in denaturalization and expatriation cases

required the Government to establish its allegations by clear, unequivocal and

convincing evidence.

130

Interim Decision #17110

was entirely voluntary, 'without duress or coercion and was in accord

with his own wishes to reside in that country. Under.the circumstances

of the case we are unable to find that the respondent, who has resided

in the Philippines continuously since 1957 until October 1965, who

has gained permanent roots in that country by his own voluntary acts,

can be regarded as still possessing a claim to permanent residence in

this country, inasmuch as his status has changed. The appeal will be

dismissed.

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

dismissed.

131