A-6924895
Decided by Central Office March 1, 1949 Decided by Board June 29, 1949
Immigrant: — Alien previously admitted for permanent residence — Excludability as immigrant not in possession of immigration visa on present entry to seek employment — Section 13, act of 1924 — Where possession of unexpired resident alien's border crossing card of no avail — "Returning resident" construed.
1. Where an alien is admitted for permanent residence (1948) but on the same day procures a resident alien's alien's border crossing card and returns to his home in Canada, after which he had no intention to reside here and never has had employment here, but has merely made several temporary visits here always with the intention of returning to his home in Canada, his unexpired resident alien's border crossing card does not avail him when seeking admission as an immigrant and he is not considered as a returning legal resident (sec. 4 (b), Immigration Act of 1924). [Sec. 22 C.F.R. 42.213 as to proof of returning-resident status in applying for a nonquota immigration visa under sec. 4 (b) supra. See definition of "lawful permanent resident" in 8 C.F.R. 176.101 (n) which affects the visa waivers as to holders of resident aliens' border crossing cards under 8 C.F.R. 176.202 (d) and reentry permits and (e) thereof.] [See also 8 C.F.R. 166.1, 166.4, and 110.37.]
Cf. Unreported case, Matter of R., 56175/526 decided by Board of Immigration Appeals on May 12, 1944 (prior to the preceding regulations) which indicated a reentry permit was not restricted to a "domiciled" alien. In that case the alien was admitted for permanent residence, intended to be here for duration of her studies as a student and, after each school term (9 months) went abroad to her parental home for vacation (3 months).
BEFORE THE CENTRAL OFFICE
Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law made by the Board of Special Inquiry on December 13, 1948, and read to the appellant, are hereby adopted. The appellant has submitted exceptions.
The question presented is whether an alien who, on the day he was admitted as an immigrant, obtained a resident alien's border crossing identification card and returned to Canada, who has neither taken up residence nor employment in the United States but has made several reentries to this country seeking employment and otherwise, may now enter under section 4 (b) of the 1924 act when almost 7 months has elapsed since his original admission as an immigrant, and when he still desires to take up employment in the United States but has no immediate prospect of employment.
To be admissible under section 4 (b) an alien must establish he is (1) an immigrant previously lawfully admitted in the United States for permanent residence, and (2) returning from a temporary visit abroad (8 C.F.R. 110.37). The appellant meets requirements (1) in that he was duly admitted as an immigrant and it is not established that he was inadmissible at that time. He does not, however, meet requirement (2) for the reason that he has not met his burden of establishing that his absence from the United States amounted to a "temporary visit abroad" or that he is "returning" to either a place of abode or employment in the United States. Since he never has taken up actual residence in the United States or employment of any kind in this country he cannot be said to be "returning to the United States" from a visit abroad. The fact is that on the occasion of each of his entries to the United States since his original admission he has been temporarily visiting the United States with the intention of returning to Canada. His present immediate intention is the same. The principle in this case is similar to that in Matter of F----, A-6783639 and A-6789803, July 1, 1948 (C.O.), in which it was decided that an alien previously admitted for permanent residence will not be readmitted on the basis of an unexpired resident alien's border crossing identification card if it appears that at the time he obtained the card he intended to return to his home and employment in Canada. In that case the aliens involved, a husband and his dependent wife, had never taken up actual residence in the United States and, at the time they obtained their crossing cards, their intention was to return to their home and the husband's employment in Canada, with the thought of eventually entering the United States to reside. When they sought readmission to the United States upon presenting their border crossing cards, with the intention of entering the United States to see if they liked it and, if not, to take a trip to California, their exclusion ensued and was affirmed, on appeal.
In his exceptions, the appellant claims that on the day he originally was admitted it was his intention to go back to Canada immediately, settle his affairs, and, 2 or 3 weeks later, to return to the United States destined to St. Paul, Minn.; he obtained his border crossing card with this plan in mind and he departed to Canada. A few days later while in the United States attending a movie he learned from an immigrant inspector that he could take up employment in the United States and at the same time continue to live in Canada, whereupon he changed his plans and commenced to seek employment in the United States with a view to retaining his Canadian residence. He has been unable to find acceptable employment in the United States. He states he intends going to Niagara Falls, N.Y., "after the holidays" to "take residence for a short period and take employment." The appellant does not qualify for admission under section 4 (b) of the Immigration Act of 1924, because he is not returning from a temporary visit abroad. The recommendation of the field office, that his exclusion be affirmed without prejudice, should be adopted.
Recommendation: It is recommended that the excluding decision of the Board of Special Inquiry be affirmed without prejudice to the alien's reapplication for admission within 1 year when in possession of the required documents.
So ordered.
Discussion: This case presents an appeal from an order entered by the Commissioner on March 1, 1949, affirming the appellant's exclusion by a Board of Special Inquiry held at Niagara Falls, N.Y., on December 13, 1948. Counsel on appeal urges the appellant's admission to the United States in order that he may now take up permanent residence. The Board of Special Inquiry found that the appellant was inadmissable to the United States under the act of 1924 — no immigration visa.
The record relates to a native and citizen of Canada, 23 years of age, who last sought admission to the United States on December 13, 1948. At that time he presented a resident alien's border crossing identification card valid until May 22, 1949. He testified at that time that he wished to enter the United States for the purpose of seeking employment.
The record establishes that the appellant was admitted to the United States for permanent residence on May 25, 1948, at Niagara Falls, N.Y., upon presentation of section 4 (c) visa No. 623 issued on the same date by the United States consul at Niagara Falls, Ontario, Canada. There was issued to the appellant on this same date a resident alien's border crossing identification card the validity of which expires on May 22, 1949. The appellant testified that he had never resided in the United States since his admission for permanent residence on May 25, 1948. His testimony shows that at the time of his admission for permanent residence to the United States he intended to go to St. Paul, Minn., and live with his cousin. He testified that it was not his intention to accept employment in the United States after his admission for permanent residence on May 25, 1948. He testified that if he were successful in obtaining employment in the United States he would reside in Canada and work in the United States. He testified that after his admission to the United States on May 25, 1948, he was issued a resident alien's border crossing identification card and it was his intention at that time to return immediately to his home in Canada. He testified that after his return to his home in Canada on May 25, 1948, he changed his mind about going to St. Paul, Minn., because the cost of living was too high. He testified that he then decided to get a job at Niagara Falls, N.Y., but that he never intended to live in the United States. He testified that it was his intention merely to work in the United States if he were successful in obtaining employment. The appellant in a communication dated December 18, 1948, addressed to the Commissioner of Immigration and Naturalization, stated that after his admission for permanent residence on May 25, 1948, he did obtain employment in the United States but refused the job because of transportation difficulties between his home in Canada and Niagara Falls, N.Y.
The appellant's testimony clearly establishes that after being admitted to the United States for permanent residence on May 25, 1948, he returned to his home in Canada on the same date. His testimony shows that after returning to his home in Canada he never intended to reside in the United States. The appellant has never been employed in the United States; on the one occasion when he did obtain a position in the United States he refused it because of transportation difficulties between his home in Canada and Niagara Falls, N.Y. The record shows that since his original admission for permanent residence on May 25, 1948, the appellant made several temporary visits to the United States always with the intention of returning to his home in Canada.
The court said in Transatlantica Italiana v. Elting, 66 F. (2d) 542 (C.C.A. 2d, July 25, 1933), that a returning alien must have been domiciled and retained his domicile in the United States to be admitted under exceptions from quota. In U.S. ex rel. Lesto v. Day, 21 F. (2d) 307 (C.C.A. 2d, Aug. 4, 1927), the court held that the word "temporary" in the phrase "returning from a temporary visit abroad" means more than a mere retention of domicile, that is, an intention to keep the United States as a home to which one will ultimately return. The intention of the departing immigrant must be the return within a period relatively fixed by some early event.
After careful consideration of the record, we concur in the decision reached by the Commissioner on March 1, 1949. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.
This is an appeal from the decision of the Assistant Commissioner of Immigration and Naturalization dated March 1, 1949, wherein the excluding decision of the Board of Special Inquiry has been affirmed without prejudice to the alien's reapplication for admission within one year from the date of exclusion when in possession of the required documents.
The subject hereof was refused admission because at the time of his application for readmission to the United States at Niagara Falls, N.Y. on December 1, 1948, he was found to be an immigrant not in possession of an unexpired immigration visa pursuant to the provisions of section 13 of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 213), which section reads as follows:
No immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa * * * is otherwise admissible under the immigration laws.
The majority of the Board has sustained the Assistant Commissioner of Immigration and Naturalization, holding that the appellant is an immigrant and, therefore, requires an unexpired immigration visa.
The only question presented is whether or not the alien is, in fact, an immigrant requiring an unexpired immigration visa or is a nonquota immigrant previously lawfully admitted to the United States who is returning from a temporary absence in foreign contiguous territory and who presented on the occasion of his application a border crossing card in lieu of an immigration visa.
The appellant testified that he was born in Niagara Falls, Ontario, Canada, on December 18, 1926; that he is a citizen of the country of his nativity. He is single and his occupation is bookkeeper.
On May 25, 1948, the appellant applied for admission to the United States at Niagara Falls, N.Y. and upon presentation of nonquota consular immigration visa No. 623, issued to him as a native of Canada, he was lawfully admitted to the United States for permanent residence pursuant to the provisions of section 13 (a) of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 136). On the occasion he was entering the United States to seek employment.
It is helpful to quote the following questions and answers appearing on page 3 of the record:
Q. Why did you obtain a visa?
A. I was going to live in the United States but the authorities on the bridge advised me to work in the United States and live in Canada.
Q. Did you intend to take up employment in the United States at the time you were admitted at Niagara Falls, N.Y., May 25, 1948?
A. No; my intention was to go to St. Paul, Minn., to live with my cousins. A week later they told me I could work here. I didn't know that. I sorta changed my mind.
After entry to the United States the appellant applied for and obtained what is designated as a border crossing card, which card is a requisite pursuant to the provisions of the act approved June 28, 1940. Section 30 of that act ( 54 Stat. 673, 8 U.S.C. 451) provides:
Any alien seeking to enter the United States who does not present a visa (except in emergency cases defined by the Secretary of State) a reentry permit, or a border crossing card shall be excluded from admission to the United States.
Section 4 (b) of the Immigration Act approved May 26, 1924, defines, among others as a nonquota immigrant, "An immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad." (See also sec. 4 (c) of the above act, * * * "An immigrant who was born in the Dominion of Canada, * * *."
Indicative of the intent of Congress, section 10 of the act of May 26, 1924, 43 Stat. 158, 8 U.S.C., section 210, was amended in part as follows:
(a) Any alien about to depart temporarily from the United States may make application to the Commissioner of Immigration and Naturalization for a permit to reenter the United States * * *.
8 U.S.C., part 166 provides in part as follows:
A resident alien's border crossing identification card may be issued to any alien who, upon application therefor, submits satisfactory evidence that he (1) has been legally admitted to the United States for permanent residence and has not relinquished the status of a permanent resident, (2) has complied with the applicable provisions of the Alien Registration Act, 1940, and (3) has a legitimate purpose and reasonable need to make a temporary visit or visits to Canada or Mexico, with no single visit to exceed a period of 6 months * * *.
Pursuant to the foregoing, immediately after entry to the United States the alien applied for and obtained a border crossing card as required under the provisions of the acts of 1924 and 1940 as hereinabove set forth. He thereupon proceeded to Canada and upon presentation of that border crossing card he was readmitted to the United States on several occasions, to wit, about every 2 weeks during which time he diligently pursued his search for employment.
The evidence in this case conclusively establishes that the alien was lawfully admitted to the United States for permanent residence on May 25, 1948. He was likewise subsequently readmitted to the United States lawfully, and on the occasion of his last application he presented a border crossing card and did not, therefore, require an unexpired consular immigration visa because he was previously lawfully admitted and his testimony shows that he was returning to the United States after a temporary absence therefrom in Canada. This fact is further supported by the testimony that when the alien entered the United States on December 13, 1948, he departed from Canada with the intention of acquiring a new domicile in the United States. That status required that he obtain the requisite document in order that he could reenter this country after temporary absence in Canada. This he did. While it is true that he returned to the home of his father and did perform some household duties there, yet he had relinquished his Canadian domicile for the new one he acquired in the United States. All of his various acts, not alone the issuance and the procurement of a border crossing card, but his subsequent diligent search of employment in the United States go to the support of the conclusion that he is in fact an alien previously lawfully admitted to the United States who is returning from Canada after a temporary absence in the Dominion. This situation is peculiar to the Canadian border.
In further support of the foregoing conclusion the District Court of the United States, Southern District of New York on December 16, 1938, in the case of United States ex rel. Katnic v. Reimer, 25 F. Supp. 925, p. 926, stated:
Without attempting a complete definition of "a temporary visit" we may say that we think the intention of the departing immigrant must be to return within a period relatively short, fixed by some early event. See U.S. ex rel. Alther v. McCandless, 46 F. 2d 288.
Of further interest is the statement of the court in the case of United States v. Parisi, 24 F. Supp. 414, wherein the court said:
There seems to be no legislative history of the new act to indicate that Congress was intentionally adding to or changing the prior law as to the status of an alien returning from a temporary visit abroad. On the contrary it seems reasonable to infer that the phrase as used in the 1921 act had the same meaning as that expressly given in the 1924 act.
The foregoing is the language used in the case of Transatlantica Italiana v. Elting, 66 F. 2d 542, which decision has been employed by the majority as a basis for its decision. Yet, in the case of A---- E---- M---- P----, 55973/653, decided by this Board on June 4, 1941, we expressly indicated that there was a complete distinction made between the provisions of the act of 1917, 8 U.S.C. section 136 wherein the Congress employed the term returning to an unrelinquished domicile of seven consecutive years and the act of 1924. In the portion of the act of 1924 here under consideration section 4 (b) of the said act of 1924, supra, Congress employed the term previously lawfully admitted returning after a temporary visit abroad. Obviously a change was intended by the language thus employed in the latter statute.
Further support for the position taken in this dissent is found in the case of U.S. ex rel. Lesto v. Day, decided by the Circuit Court of Appeals, Second Circuit, August 4, 1927, 21 F. 2d 307, p. 308, wherein the court said:
The word "temporary" in the phrase "returning from a temporary visit abroad," means more than the mere retention of domicile; that is, an intention to keep the United States as a home to which one will ultimately return.
This follows from section 10 of the Immigration Act of 1924 prescribing the issuance of permits for temporary absence.
In the case under consideration the appellant obtained such permit thereby fully manifesting his intention. Of similar import is the language found in the case of Hurst v. Nagle, C.C.A. 9th, January 14, 1929, 29 F. (2d) 346, p. 347, certiorari denied by the Supreme Court of the United States. See also Serpico v. Trudell, 46 F. 2d 669, p. 670.
In the case under consideration, the evidence establishes that the alien was lawfully admitted to the United States for permanent residence as an immigrant. He expended the necessary fee of $10 for a nonquota visa and he paid to the Government a head tax in the amount of $8. After entry to the United States he procured a border crossing card, the necessary document in lieu of an immigration visa, to present on the occasion of his reentry. Thereafter he was lawfully admitted to the United States upon presentation of the said border crossing card and on the occasion of his last entry he presented that document for the purpose of returning to the United States after his temporary absence in Canada and for the further purpose of making additional search for employment. He did everything that was required of him pursuant to the instructions given to him by an officer of the Immigration and Naturalization Service as reflected by the record. The advice thus given him was entirely correct and legal. The purpose of the Immigration Act of 1924 was to limit the numbers of foreign born persons entering the United States. Natives of Canada were placed in a nonquota status. The alien was still in that status on the occasion of his last application for readmission.
For all of the reasons hereinabove set forth it is my opinion that the alien is not required to present an immigration visa, being in possession of a valid document in lieu thereof and he is, therefore, in fact admissible to the United States. The appeal from the decision of the Assistant Commissioner of Immigration and Naturalization should, therefore, be sustained and the alien's admission to the United States authorized.