Santos v. UNITED STATES IMMIGRATION AND NAT. SERV., 23160.

• Decision Date: 13 February 1970
• Docket Number: No. 23160.,23160.
• Citation: 421 F.2d 1303
• Parties: Catalino C. SANTOS, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

421 F.2d 1303 (1970)

Catalino C. SANTOS, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 23160.

United States Court of Appeals, Ninth Circuit.

February 13, 1970.

Norman Stiller (argued), of Faulkner, Sheehan & Wiseman, San Francisco, Cal., for appellant.

David R. Urdan (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., San Francisco, Cal., Stephen M. Suffin, Atty., I. N. S., San Francisco, Cal., John N. Mitchell, Atty. Gen. of the U. S., Washington, D. C., for appellee.

Before MADDEN^*, Judge of the United States Court of Claims; MERRILL and BROWNING, Circuit Judges.

J. WARREN MADDEN, Judge:

The petitioner, Santos, seeks review by this court of the Final Order of the Respondent Service, hereinafter called the Service, that the petitioner be deported. The order was entered pursuant to Section 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b), hereinafter referred to as the Act. Section 106 of the Act, 8 U.S.C. § 1105a gives this court jurisdiction to review that order.

The petitioner is a citizen of the Philippines. From 1947 to July 1959 he worked on the Island of Guam. He had the status of a permanent resident of Guam, pursuant to 8 C.F.R., 4.2(J).¹ He left Guam in July 1959, to become a cook-steward for a shipping company, and for fourteen months sailed in that capacity among the Pacific Islands. During this period he twice landed on Guam. In 1960 he landed in the Philippines, and visited his wife and children there, while awaiting further sailing orders from his former employer company. Such orders never came, so he inquired about other employment that would return him to Guam. In the summer of 1961 he contacted the American Consul in Manila who advised him to return to Guam to establish his right to permanent residence. In March, 1962, he went to New Guinea to work as a cook in a lumber camp, and stayed there until September 1963, when he returned to the Philippines from some three months. He obtained work as a cook for a ship company and sailed on various ships which called at Guam in 1964, 1965 and 1967. On September 10, 1967, the ship on which he was then employed called at San Francisco, California, and Santos went ashore there as a crewman purportedly for the purpose of being discharged from his vessel and repatriated to the Philippines. He remained ashore longer than he was authorized to do, and the Service, on September 14, 1967, issued an order requiring him to show cause why he should not be deported as an immigrant crewman who had remained in the United States longer than the law allowed.

Hearings in the show-cause proceeding were held before a Special Inquiry Officer of the Service, on October 25, 1967, and February 13, 1968. Santos' response to the show-cause order was that he had, as we have seen above, been a permanent resident of the United States and that he had entered the United States at San Francisco on September 10, 1967, not as an alien crewman, but as a permanent alien resident returning from a temporary visit abroad, as authorized by Section 101(a) (27) (B) of the Act, 8 U.S.C., § 1101(a) (27) (B).² He applied for waiver of the documentation required of returning resident aliens.³ The Special Inquiry Officer, after the two days of hearings, decided that Santos was not, when he landed at San Francisco on September 10, 1967, "returning from a temporary visit abroad." That conclusion of course disposed of the petitioner's contention that he was entitled in the discretion of the Attorney General to readmission "without being required to obtain a passport, immigrant visa, re-entry permit or other documentation". But, principally, it denied that he was entitled to enter the United States at all in the status of a permanent alien resident returning from a temporary visit abroad.

The Special Inquiry Officer in his written decision filed April 30, 1968, after narrating the pertinent events in the petitioner's history from 1947 down to date said:

The respondent has actually not lived in Guam since his voluntary departure in 1959. His wife and children have always lived in the Philippines and when he has not been working elsewhere, he has lived with them. Under the circumstances I am unable to find that when he last entered the United States he was "returning from a temporary visit abroad" I conclude, therefore, that he is not eligible for a waiver of the immigrant visa requirement.

On July 24, 1968, the Board of Immigration Appeals dismissed the appeal which the petitioner had filed with it, seeking to have the Board review and reverse the decision of the Special Inquiry Officer. The Board said that Santos' "actual place of residence since 1959, for the past nine years, has been in the Philippines with his wife and children when he was not employed elsewhere".

The Special Inquiry Officer and the Board were confronted with the question whether Santos, when he landed at San Francisco in 1967, was a person who had had the status of an alien admitted to the United States (Guam) for permanent residence, had retained that status from the time, 1947, when he acquired it, and was, in the year 1967, returning with that status "from a temporary visit abroad". If, having that status in 1959, after 12 years in Guam, he had left Guam with the intention of returning to the Philippines, the country of his birth and his citizenship, and remaining there, he would have lost his status as a permanent alien resident of the United States (Guam). In fact he left Guam in 1959, voluntarily, because he was offered what he regarded as a better job elsewhere. He retained no ties in Guam. During his twelve years there he had lived and...