Matter of Guimaraes, Interim Decision Number 1339

• Decision Date: 15 May 1964
• Docket Number: A-8755979,Interim Decision Number 1339
• Citation: 10 I&N Dec. 529
• Parties: MATTER OF GUIMARAES In EXCLUSION Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

10 I&N Dec. 529

MATTER OF GUIMARAES

In EXCLUSION Proceedings

Interim Decision Number 1339

A-8755979

Board of Immigration Appeals.

Decided by Board May 15, 1964

Since appellant's absence of a month to Portugal to visit his parents is not within Rosenberg v. Fleuti, 374 U.S. 449, despite his continuing intent not to abandon residence here, his return to the United States following such absence constitutes an entry upon which to predicate a ground of exclusion.

EXCLUDABLE: Act of 1952—Section 212(a) (22) [8 U.S.C. 1182(a) (22) (1958)]—Ineligible to citizenship—Applied for and received relief from service in the armed forces.

Applicant, a 55-year-old married male, a native and citizen of Portugal, admitted to the United States for permanent residence in 1954, sought to enter the United States on February 28, 1960, after a visit to Portugal of a month. His exclusion was ordered on the ground that his execution on April 30, 1943 of an application for exemption from service in the armed forces of the United States had made him ineligible to citizenship and, therefore, inadmissible to the United States. Applicant's appeal was dismissed by the Board on August 16, 1961.

Applicant requests reopening of his exclusion proceeding for a reexamination of the circumstances surrounding his visit to Portugal so that there may be a determination in view of Rosenberg v. Fleuti, 374 U.S. 449 (1963), as to whether he intended to make a meaningful departure. The motion will be denied.

With two exceptions, any coming of an alien from a foreign place, whether it is a first coming or a return, is an "entry" subjecting the alien to the exclusion provisions of the immigration law. The two exceptions are: (1) a coming following an involuntary departure, (2) a coming following a departure which "was not intended or reasonably to be expected" by the alien. (Emphasis supplied.) An alien falling within an exception does not make an "entry" upon his return; i.e., he is regarded as if he had not left the United States (section 101(a) (13) of the Act, 8 U.S.C. 1101(a) (13) (1958)).

In Fleuti, supra, the Court passing on the second exception held that an alien's departure made without the desire to disrupt his permanent residence was not an "intended" departure within section 101(a) (13) of the Act. The Court did set forth some factors relevant in determining whether a departure had been intended to be disruptive of residence (length of the absence, purpose of the visit, need to secure travel documents) but preferring that interpretation evolve judicially made no attempt to set down a firm rule for classifying departures. The Court did state that an "innocent, casual and brief" trip could be one which was not "intended"; i.e., one in which the intent to disrupt residence was absent.

The Board held that Fleuti, a permanent resident, who had briefly visited Mexico, had been excludable on his return as one afflicted with psychopathic personality. The Court considering whether Fleuti came within the second exception but being unable to decide because the record contained no detailed description or characterization of the trip to Mexico beyond the fact that Fleuti had gone on a visit of a few hours, remanded the case to the Service for further consideration, stating, "If it is determined that respondent [Fleuti] did not `intend' to depart in the sense contemplated by section 101(a) (13) [of the Act], the deportation order will not stand * * *" (374 U.S. 463).

Applicant believes that development of the facts concerning his visit will show that he had a continuing intent to return to the United States and, therefore, that he did not intend to depart in a manner disruptive of his permanent residence: he was absent for only a month—a short time, especially so in terms of the entire period he had been in the United States; furthermore, he had left only to visit his aged parents in Portugal, leaving behind his wife and a child, a home he owned, a business, assets, land, and a checking account.

The trial attorney opposes reopening as fruitless because of the contrast between Fleuti's excursion of a few hours and applicant's longer absence; and Fleuti's casual departure and applicant's departure which required him to obtain a Portuguese passport and transportation. The trial attorney also raises a new issue: he points out that Fleuti applies only to an alien admitted for permanent residence, but he contends that the applicant was not so admitted because his admission on September 28, 1954, for permanent residence was in error since he was then inadmissible as one...