Matter of Huang

• Decision Date: 28 September 1988
• Docket Number: Interim Decision Number 3079,A-37289542,A-37289544.,A-37289543.
• Citation: 19 I&N Dec. 749
• Parties: MATTER OF HUANG. In Exclusion Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

19 I&N Dec. 749

MATTER OF HUANG.

In Exclusion Proceedings.

Interim Decision Number 3079

A-37289542

A-37289543.

A-37289544.

Board of Immigration Appeals.

Decided by Board September 28, 1988.

(1) Where an applicant for admission to the United States has a colorable claim to returning resident status, the burden is on the Immigration and Naturalization Service to show by clear, unequivocal, and convincing evidence that the applicant should be deprived of his or her lawful permanent resident status.

(2) An alien acquires lawful permanent resident status at the time of his initial admission to the United States as a lawful permanent resident, as at that point he attains "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," and is thus an alien "lawfully admitted for permanent residence" pursuant to section 101(a)(20) of the Act, 8 U.S.C. § 1101(a)(20) (1982).

(3) For purposes of determining whether the applicant has abandoned her lawful permanent resident status, an applicant's absence from the United States due to her husband's having a contract to work and study at a Japanese university cannot be said to be a temporary visit abroad fixed by some early event, where the record does not show a clear demarcation as to when her husband's relationship with the university would end.

EXCLUDABLE: Act of 1952—Sec. 212(a)(20) [8 U.S.C. § 1182(a)(20)]—No valid immigrant visa (all applicants)

ON BEHALF OF APPLICANTS: Bernard S. Karmiol, Esquire Mazo & Vidor 9744 Wilshire Boulevard, Suite 402 Beverly Hills, California 90212

ON BEHALF OF SERVICE: Gregory E. Fehlings General Attorney.

BY: Milhollan, Chairman; Dunne and Morris, Board Members. Concurring and Dissenting Opinion: Heilman and Vacca, Board Members.

In a decision dated May 13, 1986, an immigration judge found the applicants excludable under section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(20) (1982), as aliens with no valid immigrant visas, and ordered them excluded and deported from the United States. The applicants have appealed from that decision. The appeal will be dismissed. The request for oral argument before the Board is denied.

The applicants are natives and citizens of Taiwan and include a female adult who is 38 years old, and her two minor children, ages 8 and 11.¹ They were initially admitted to the United States as lawful permanent residents on June 5, 1982. The applicant's husband, the father of the children in question, was admitted as a lawful permanent resident a week earlier. The record reflects that the applicant's husband, after receiving his Alien Registration Receipt Card (Form I-551), returned to Japan to continue studying and working at a university's medical school as a medical doctor in the field of neurosurgery. Both the applicant and the Immigration and Naturalization Service stipulated at the exclusion hearing that the applicant's husband had entered into a contract with the medical school for this purpose in May 1981, and that the contract was for a period of 5 years. The applicant and the two children remained in Los Angeles, California, for approximately 3 to 4 weeks at the home of her husband's sister, a United States citizen. Thereafter, she and the children returned to Japan. The applicant and her two children last sought to reenter the United States on May 10, 1986, at which time they were placed in exclusion proceedings. In a sworn statement dated that same day, the applicant reported that she intended for her children to go to school in the United States and to live in this country forever, while she planned to return to Japan in 2 months.

The applicant testified at the exclusion hearing that her husband had been a medical doctor in Taiwan and had entered into the contract with the medical school in Japan, as they thought that it would take a great deal of time before they would be granted visas to enter the United States as immigrants on the basis of a visa petition filed by her husband's sister. She also related that she and her two children had returned to the United States every year since 1982 for 3 or 4 weeks in March or April in order to maintain her lawful permanent resident status. According to the applicant, she and the children would stay with her husband's sister. She reported that her children attended a Chinese school in Japan, but that they had also attended a preschool in the United States for a short period in 1982 and had also attended school in this country for a short period in 1984. According to the applicant, her husband had not returned to the United States since 1982 and had never worked in the United States. She also related that she had worked at the Taiwan consulate in Japan for 3 years, until February 1985, and that they had sold their property in Japan in October 1985.

At the exclusion hearing, the applicant reported that she and her husband had invested in a condominium in Long Beach, California, through a partnership or joint venture, beginning in 1980, and had paid investment taxes to the United States. She also related that she and her husband had purchased a house in Los Angeles, California, in 1985 and paid property taxes on the house. She additionally noted that she had a bank account in the United States.

Additional documents have been submitted by the applicants on appeal, including a June 18, 1986, letter from the chairman of the department of neurosurgery at Osaka University Medical School. In the letter, the chairman related that the applicant's husband had come to Japan on May 23, 1981, and since June 1, 1981, had been working as a research fellow in the department of neurosurgery. According to the chairman, he had been working as a staff neurosurgeon at another hospital since July 1, 1985, and had passed the Japanese National Board of Medical License in May 1982. An additional certificate from the dean of the medical school certifies that the applicant's husband had been a research student at the school's department of neurological surgery from July 1, 1983, to the present time.

A letter from the applicant's husband, dated June 12, 1987, has also been submitted. In the letter, her husband reported that he had been a neurological surgeon in Taiwan until 6 years earlier, when he decided to research and study more in that field and therefore entered a doctorate program at a medical school in Japan. According to the applicant's husband, he still needed to complete his dissertation and might have his doctorate degree in 1987. He indicated that he desired to stay in the United States after he passed an examination for neurological specialists the following year. Noting that he and his wife had a house in California as well as a bank account, he stated that they intended to stay and live in the United States even though they had been unable to do so for the past 5 years.

The immigration judge concluded that the applicant and her two children were excludable under section 212(a)(20) of the Act as aliens not in possession of valid immigrant visas, as they had never established their lawful permanent resident status. He concluded that even if they had, they had abandoned that status. He determined that they had never established a residence in the United States, and that their intent regarding their residence or domicile was irrelevant, noting that the Act defined "residence" as the actual dwelling place in fact, without regard to intent.

On appeal, the applicant contends that her and her family's intent is relevant to the question of whether their lawful permanent resident status has been abandoned. She asserts that she and her children never abandoned that status, as they had always intended to settle in the United States following the completion of her husband's doctoral program in Japan, which was now expected in 1988. She points out that when her husband began his training in 1981, they were unaware that his priority date for coming to the United States would be reached in early 1982. Noting that her family's Japanese residency documents submitted at the exclusion hearing show that her family was residing only in a temporary status which had to be renewed yearly, the applicant asserts that their purchase of investment property in 1980 and a house in 1985, as well as their bank account and payment of taxes in the United States, also show her intent.

The Service contends on appeal that the applicants have abandoned their lawful permanent resident status.² In doing so, it points out that the applicant's husband has never returned to the United States, that the applicant herself has worked for years in Japan, that the applicant's children attend school in Japan, and that they own a home in Japan and have never had a residence in the United States. It further notes that the applicant's visits to the United States have been brief, and only for the purpose of giving the appearance of maintaining a residence in this country.

Section 212(a)(20) of the Act requires the exclusion of immigrants seeking admission to the United States if they do not possess a valid immigrant visa, re-entry permit, or other valid entry document. Section 211(b) of the Act, 8 U.S.C. § 1181(b) (1982), however, permits the Attorney General to waive those documentary requirements and, hence, the section 212(a)(20) ground of excludability, for any alien who is a returning resident immigrant.

A returning resident is "an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad." Section 101(a)(27)(A) of the Act, 8 U.S.C. § 1101(a)(27)(A) (1982). The phrase "lawfully admitted for permanent residence" means "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." Section 101(a)(20) of the Act....