CARRASCO
Respondent was admitted to the United States for permanent residence June 7, 1960. In 1970 he moved to Mexico to reside with his wife in a home he had purchased there. He commuted from his home in Mexico to his employment in the United States from 1970 until 1974, with the exception of two six-month periods. In 1974 he was incarcerated in the United States following conviction of a violation of 21 U.S.C. 952(a) for the importation of marihuana into the United States, and was subsequently found deportable undersection 241(a)(11) of the Immigration and Nationality Act . The only issue on this appeal is the immigration judge‘s denial of respondent‘s application for relief undersection 212(c) of the Act .- When respondent moved to Mexico and assumed commuter status in 1970, he demonstrated his intent to reside in Mexico and not the United States. In so doing, he abandoned his domicile in the United States. Since respondent has no domicile in the United States, he is statutorily ineligible for relief under
section 212(c) of the Act . - Matter of Garcia-Quintero, Interim Decision 2366 (BIA 1975), followed.
CHARGES:
Order: Act of 1952—
ON BEHALF OF RESPONDENT: Wallace Heitman, Esquire
725 Mercantile Dallas Building
Dallas, Texas 75201
BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members
In a decision dated November 21, 1975, the respondent was found deportable as charged, his applications for discretionary relief under
The respondent, a native and citizen of Mexico, was admitted to the United States for permanent residence on June 7, 1960. On March 29, 1974, he was found guilty in the United States District Court for the Western District of Texas for a violation of
The respondent does not contest deportability or the immigration
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraph (1) through paragraphs (25) and paragraphs (30) and (31) of subsection (a).
Although the statute describes a waiver available to an alien seeking to enter the United States, we recently held that
The immigration judge, in denying the application, held that: (1) as an alien convicted of a marihuana violation, the respondent is statutorily ineligible for a
As an alien convicted of an offense related to the importation of marihuana, the respondent is inadmissible to the United States under
The second issue presented is whether the respondent has the requisite seven consecutive years of lawful unrelinquished domicile in the United States. The immigration judge found that the respondent had assumed commuter status during the period from approximately October 1970 to February 1974. Relying on our decision in Matter of Garcia-Quintero, Interim Decision 2366 (BIA 1975) in which we found that a lawful permanent resident who had resided in Mexico and commuted to work in the United States had abandoned his domicile in the United States, the immigration judge concluded that the respondent abandoned his domicile in the United States. The respondent admitted that he had lived in Mexico and commuted daily to work in the United States for most of the period in question. However, he denies that he abandoned his domicile in the United States and asserts that he merely changed his residence to Mexico in order to live with his wife who was awaiting her immigrant visa.
The question presented in Garcia-Quintero, supra, and presented here is a question of fact: did the respondent either have the intention to make his home in Mexico for the indefinite future or lack an intention to make his home elsewhere. Gilbert v. David, supra. The relevant facts contained in the record are these: the respondent was admitted for permanent residence in the United States in 1960, at which time he acquired a domicile in the United States; he has resided here continuously from 1960 to 1970 and from 1974, when he was arrested, to the present; his parents and sisters, two of whom are United States citizens, all reside in the United States; he married a native of Mexico in Texas in 1968; he lived with his wife, who was here unlawfully, in California from approximately 1968 to 1970; in 1970 he returned to Mexico with his wife to reside in a house purchased by him prior to his marriage; and application for an immigrant visa was made by his wife in 1972; his employment has consistently been in the United States; he commuted daily from his home in Mexico to his work in the United States for the period from approximately October 1970 to February 1974 except for two six-month periods when he worked and lived in California and Chicago; his United States citizen child has resided in the United States with an aunt in order to attend school here since sometime prior to 1974; he paid United States taxes on the income earned in 1970 to 1974.
We find the respondent‘s assertion that he did not intend to remain in Mexico unconvincing, particularly in light of the fact that he had purchased a home in Mexico, that he lived two years in Mexico before an application for an immigrant visa was made by his wife, and that he did not voluntarily return to the United States to reside in 1974 but rather was arrested and incarcerated. Hence, we conclude that the respondent in 1970 intended to live in Mexico indefinitely. As a consequence, he abandoned his United States domicile.
The respondent has not established statutory eligibility for discretionary relief under
ORDER: The appeal is dismissed.
Regardless of the enclosed decision, you may be allowed to stay in the United States because of a recent court ruling if you registered with an American consul for an immigrant visa before January 1, 1977, and entered the United States prior to March 11, 1977. The court ruling relates to the case of Silva v. Levi, 76 C 4268 (N.D. Ill.). Please contact your attorney or authorized representative or an INS office for further information.
Irrespectivamente de la decision que se incluye, usted puede estar autorizado a permancer en los Estados Unidos a causa de una reciente determinacidn judicial si usted se registrd con un consul American para una visa de inmigrante antes del primero de Enero de 1977, y entro a los Estados Unidos previo al 11 de Marzo de 1977. La determinacion judicial se refiere al caso de Silva v. Levi, 76 C 4268 (N.D. Ill.). Favor de comunicarse con su abogado, o su representante autorizado o una oficina del Servicio de Inmigracidn y Naturalization para mas information.