HUANG
(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
(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.
In a decision dated May 13, 1986, an immigration judge found the applicants excludable under
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
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 shе 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 рassed 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
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 abаndoned 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.
A returning resident is “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit
The term “temporary” is not subject to inflexible definitiоn and varies in application depending upon the facts and circumstances of each particular case. See Gamero v. INS, 367 F.2d 122 (9th Cir. 1966). What is a temporary visit cannot be defined in terms of elapsed time alone. United States ex rel. Polymeris v. Trudell, 49 F.2d 730 (2d Cir. 1931), aff‘d, 284 U.S. 279 (1932). Rather, the intention of the alien, when it can be ascertained, will control. Id.; Matter of Kane, 15 I&N Dec. 258 (BIA 1975); see also United States ex rel. Alther v. McCandless, 46 F.2d 288 (3d Cir. 1931). We have in the past ascertained an alien‘s intention by examining the location of his family ties, property holdings, and job, and whether he intended to return to the United States as a place of employment or business or as an actual home. Matter of Muller, 16 I&N Dec. 637 (BIA 1978); Matter of Quijencio, 15 I&N Dec. 95 (BIA 1974). We have also considered the applicant‘s purpose in departing from the United States, whether the visit abroad can be expected to terminate within a relatively short period of time, and whether the termination date can be fixed by some early event. Matter of Kane, supra.
We emphasize that “unrelinquished lawful permanent residence,” as used in
It is important to note that the Service has the burden in this case of proving that the applicant is not eligible for admission as a returning permanent resident alien. While the burden of proving admissibility is generally on the applicant in exclusion proceedings, see
This Board has not previously articulated what burden of proof the Service must meet in order to establish that an applicant‘s lawful permanent resident status has changed. We now conclude that the Service‘s burden is to show that the applicant‘s status has changed by clear, unequivocal, and convincing evidence. In Woodby v. INS, 385 U.S. 276 (1966), the Supreme Court observed that drastic deprivation may follow if а resident of the United States is compelled to forsake all bonds formed in this country and go to a foreign land where the resident often has no current ties. The Court therefore held in that case that in deportation hearings the Service must establish facts supporting deportability by clear, unequivocal, and convincing evidence. An applicant for admission to this country who has a colorable claim to returning resident status similarly may often have much at stake in retaining his or her lawful permanent resident status.
For purposes of the constitutional right to due process, a returning lawful permanent resident‘s status is assimilated to that of an alien continuously residing and physically present in the United States. Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). Although these differently situated groups of aliens do not have a right to identical treatment, and a returning lawful permanent resident‘s admissibility may be properly determined in an exclusion hearing, Landon v. Plasencia, 459 U.S. 21 (1982), the returning lawful permanent resident should be given reasonable notice of the charges against her and afforded a fair hearing. Kwong Hai Chew v. Colding, supra. Givеn what the alien may have at stake, it has also been held, as noted above, that a returning lawful permanent resident may only be deprived of that status in proceedings in which the Service bears the burden of proof. The Board similarly concludes that the deprivation that may follow also requires that the Service establish that such status has changed by clear, unequivocal, and convincing evidence.
In the case at hand, the immigration judge concluded that the applicants had never established а lawful permanent resident status in the United States. This conclusion was incorrect. The applicants acquired lawful permanent resident status in the United States at the time of their June 5, 1982, admission to this country. See
The immigration judge also found that the aрplicants, if they ever had attained lawful permanent resident status, had abandoned that status. The Board agrees. However, the Board would point out that the immigration judge was incorrect in concluding that the applicant‘s intent was irrelevant in determining whether she had abandoned that status. Although
While the applicant‘s professed intent was to return to the United States, her actions have not supported that intent. An alien‘s desire to retain her status, without more, is not sufficient. Matter of Kane, supra. The length of the applicant‘s absence from the United States is a significant factor in showing her intent to abandon her lawful permanent resident status. Except for brief 3- to 4-week visits each year, the applicant and her children had been absent from the United States for approximately 4 years at the time of their last attempted entry in May 1986. During these brief visits, the applicant and her children resided with the sister of the
Moreover, the applicant was employed in Japan for 3 years from 1982 to 1985. Her husband has studied and worked as a doctor in the field of neurosurgery at a university in Japan since June 1981 and, since returning to Japan in 1982, has never returned to the United States. The applicant asserts on appeal that her husband was required to remain in Japan, thus requiring that she and their children do the same, because her husband had entered into a 5-year contract in May 1981 to study and work at the university before they were notified that they could come to the United States as immigrants. As noted above, an extended period of absence from the United States, in appropriate circumstances, can be viewed as a temporаry visit abroad if the end of the period of absence can be fixed by some early event. In the case at hand, the applicant argues that the period of absence was fixed by her husband‘s completion of his studies and work in the field of neurosurgery by attaining his doctorate degree at the university in question. However, the Board concludes that this does not provide a sufficiently definite point at which the applicant would return to the United States. In this regard, the Board would point out that the applicаnt initially testified that the time of her family‘s return was provided by the husband‘s 5-year contract with the university, which would have ended in June 1986. However, evidence submitted by the applicant, including a June 1987 letter from her husband, and statements made on appeal indicate that her husband did not plan on finishing his doctoral program and medical examinations until some time in 1988. In all, the record has not shown a clear demarcation as to when her husband‘s relationship with the university would end and she and her family could return to the United States.
The Board acknowledges that the applicant has some ties to the United States, including a sister-in-law living in California, investment property and a house in California, payment of investment and property taxes, and a bank account reportedly maintained somewhere in the United States. However, given that the appli-
ORDER: The appeal is dismissed.
Concurring in Part and Dissenting in Part: Michael J. Heilman, Board Member
I respectfully concur in part and dissent in part.
In this deсision, the majority rejects the immigration judge‘s finding that the applicants had failed to establish a permanent residence in the United States in 1982, when they were initially admitted as lawful permanent residents. Because the majority decision mischaracterizes the immigration judge‘s actual finding, the majority engages in a rather tangential analysis of
In my estimation, the immigration judge clearly found that the respondents had never established a permanent residence in the United States. The immigration judge stated that it was “obvious from this record” that the applicants “never actually resided in the United States, that they have never maintained a residence in this country.” This finding is repeated twice more in the decision in similar terms: “I am satisfied that they did not establish a residence in this country....” “There is no evidence in this record to indicate or to suggest that any member of this family ever established residence in the United States ....”
The majority focuses upon what is obviously an unintentional use of the word “status,” in one sentence of the immigration judge‘s decision, where the word “residence” is certainly meant. The immigration judge stated: “To the contrary, I find that the applicants never established permanent status in the United States and that even if they did establish such residence that they have
It is because of the mischaracterization of the immigration judge‘s decision that the majority rejects his finding that the respondents never established a permanent residence in the United States. This finding appears to me to be eminently justified and to provide the primary basis for denying the apрlicants admission under the terms of
It was recognized in Matter of Kane, 15 I&N Dec. 258, 261 (BIA 1975), that an alien who had been “lawfully admitted for permanent residence” could be denied admission subsequently under
Here, the applicants were admitted, and returned to Japan 3 or 4 weeks after their admission, having stayed at a relative‘s home. Their visit was somewhat longer than that of their husband and father, the principal immigrant in the family, from whose immigrant status they derived their right to immigrate. He had come to the United States in 1982, been admitted as a permanent resident, and returned to Japan where he was studying and working. He apparently left before the applicants themselves arrived. He never returned to the United States after that. The applicants, as noted by the majority, made a number of short visits to the United States over a period of several years, during which time they established none of the ties ordinarily associated with permanent residence.
We are thus faced with a situation in which these apрlicants wish to be considered lawful permanent residents who are returning from “temporary” visits abroad under circumstances which clearly establish that no permanent residence was ever established. The applicants have never asserted that they intended to emigrate to the United States independently of their husband and father, or
Under these circumstances, the immigration judge was correct in finding that the applicants had never established a permanent residence in the United States. As this is so, they cannot be considered persons who are returning from “temporary” visits abroad. Their visits to the United States have been temporary, their permanent residence has been abroad.
For these reasons also I would dismiss the appeal.