56127/820
Decided by the Board December 6, 1943. Approved by the Attorney General January 14, 1944
Seventh proviso to section 3, Immigration Act of 1917 — 7 years' domicile.
When an alien has an actual residence of 6 years and 4 months in the United States, which is followed by a departure with a reentry permit and a temporary absence during the remainder of the 7-year period, such residence is sufficient to meet the requirement of a domicile of 7 consecutive years necessary for the exercise of the seventh proviso to section 3 of the Immigration Act of 1917, since such domicile does not require physical presence during every day of the 7-year period. Matter of S---- (55872/461) and matter of P---- (55973/653) distinguished.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Afflicted with tuberculosis.
Mr. Louis E. Spiegler, Hebrew Sheltering and Immigrant Aid Society, for the appellant.
BEFORE THE BOARD
STATEMENT OF THE CASE: The appellant was accorded a hearing before a board of special inquiry at Montreal, Canada, on March 1 and March 3, 1943, to have his admissibility determined. The board of special inquiry on the basis of a medical certification excluded him on the ground above specified. The case is before us for consideration under the provisions of section 132.1, title 8, Code of Federal Regulations as to whether appellant may be admitted under the seventh proviso to section 3 of the Immigration Act of 1917.
DISCUSSION: The appellant, a 31-year-old native of Canada and subject of Great Britain, married, was admitted to the United States for permanent residence on April 8, 1936. He resided in the United States continuously until August 15, 1942, when he departed temporarily for Canada, on advice of his physician, for the purpose of receiving treatment for tuberculosis. During the period of his residence in the United States the alien filed a preliminary form for naturalization, and both he and his wife intend to become American citizens. His wife and two infant children, ages 10 months and 2½ years, are presently in the United States. The appellant has an apartment, furniture, a bank account (in his wife's name), and employment in the United States. Prior to his departure in August of 1942, he obtained a reentry permit (No. 1370551) dated September 25, 1942, and expiring September 25, 1943. He advised the Immigration Service of the state of his health and was informed that he would be readmitted in view of the noncontagious condition of his tuberculosis. He obtained sick leave from his newspaper, where he was employed as an editor, and permission from his draft board to depart temporarily from the United States. The appellant entered the Mount Sinai Sanitarium on August 20, 1942, and was discharged around January or February 1943. He presented himself for readmission to the United States in March of 1943, within the time limit prescribed by his reentry permit. He has not heretofore been refused admission to the United States, deported, or ordered to leave the country. The alien presented medical evidence that since November 1942 his sputum was negative, that he was discharged from the sanitarium as noncontagious, and that his condition is now arrested. The Public Health surgeon certified that his condition is too recent to be considered cured, and consequently certified that he was afflicted with class A pulmonary tuberculosis.
As no appeal lies from the medical finding of the Public Health surgeon (8 C.F.R. 136.2) the sole question is whether the alien may be admitted under the seventh proviso of section 3 of the Immigration Act of 1917, which provides that:
* * * aliens returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe: * * *.
The question is further narrowed. The majority as well as the dissenting members of this Board are agreed that the proviso should be exercised if jurisdiction exists to permit its utilization. The dissent feels that we are precluded from exercising the proviso by reason of the Attorney General's decision in the S---- case (55872/461). That case is clearly distinguishable from the instant proceeding. There it was held that an exclusion order entered prior to 7 years' actual residence interrupted domicile, as contemplated by the statute. The question now presented was not previously considered. It is whether an alien has the requisite domicile after an actual residence of 6 years and 4 months, followed by a departure from the country with a reentry permit, and a temporary absence during the balance of the 7-year period. Neither equitable nor discretionary powers are vested in the board of special inquiry. The seventh proviso can only be exercised by this Board or the Attorney General. In the exercise of these powers, and, like a court of equity, we can take cognizance of the facts as they exist at the time the case is presented to us. If the appellant's temporary absence in Canada from August 15, 1942, to date is considered as a part of his residence in the United States, he now has the requisite 7-year domicile. It is, therefore, unnecessary to return this case to the board below for reapplication, for we may treat this as an advance application for exercise of the seventh proviso. An alien whose case is on appeal is neither admitted nor excluded until the appeal is decided. It is, therefore, clear that the subject now has a domicile of 7 years if his temporary absence in Canada may be considered.
After careful analysis of the accepted meaning of the word domicile, after thorough review of the administrative holdings since the passage of the statute, and after tracing the legislative history preceding the enactment of the seventh proviso, it is the considered opinion of the majority of the Board that jurisdiction exists to exercise the proviso in the instant case. We are further of the opinion, for the reasons set forth herein and in the S---- case (55915/701) [ see page 646, this volume], decided and certified this day, that although the S---- case (55872/461) [ see page 376, this volume] is distinguishable, the doctrine there enunciated is in conflict with well-settled principles of law, that its application will lead and has led to confusion and unjust results, and that it should be reconsidered and no longer followed as a controlling precedent.
It is claimed that the word domicile has different meanings in different connections, and that as used in the seventh proviso it is synonymous with actual residence or place of abode. This view was previously expressed by another member of the Department. This definition finds its source in the language used by Story in his Conflict of Laws, page 40, which states:
Memorandum of Assistant Solicitor General Oscar Cox dated January 22, 1943, In re S---- (55872/461).
Alexander Holtzoff Special Assistant to the Attorney General, memorandum of June 4, 1941, Re P---- (55973/653).
STORY, JOSEPH. COMMENTARIES ON THE CONFLICT OF LAWS. 1883. Ed. 8, 903 pp. Boston.
By the term domicil, in its ordinary acceptation, is meant the place where a person lives or has his home. In this sense the place where a person has his actual residence, inhabitancy, or commorancy is sometimes called his domicil. In a strict and legal sense that is properly the domicil of a person where he has his true fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning (animus revertendi).
Four observations should be made in connection with Story's first definition and that adopted by Mr. Cox. In the first place, these definitions do not exclude transient absences. A man's temporary absence from his abode, home, or domicile, does not destroy it. Secondly, these definitions are merely restatements of the principle that where a man lives is taken prima facie to be his domicile. Thirdly, these definitions are likewise restatements of the doctrine that actual residence is necessary in order to acquire a domicile (although not for its continued retention). Fourthly, the term "lives" does not require continual physical presence but permits transient absences. ( See United States v. Griminger, 236 F. 285 (N.D. Ohio, W.D. 1916); In re Kalpachnikoff, 28 F. 2d 288 (E.D. Pa., 1928); In re K---- B---- (56007/258).)
"It has been held that a fixed or permanent abode means `nothing more than a domicile, a home, which the party is at liberty to leave as interest or whim may dictate, but without any present intention to change it.'" [Italics scoring supplied.] KEENAN, KOSSUTH KENT. TREATISE ON RESIDENCE AND DOMICILE. 1934. Rochester, N.Y. 981 pp. (at p. 216). The subject of temporary absences is discussed more fully hereinafter.
Anderson v. Watt, 138 U.S. 694 (1891), "The very fact of actual residence in a place is a circumstance which tends to prove domicile in that place." BEALE, JOSEPH H. A TREATISE ON THE CONFLICT OF LAWS. 1935. vol. 1, 645 pp. New York (at page 254).
"It cannot be too carefully noted that both fact and intention are necessary only for the purpose of acquiring a new domicil, and not for the purpose of retaining a domicil already acquired. A domicil once acquired, as has been seen, is retained until a union of fact and intent results in the acquisition of another, and neither the intention to put an end to a domicil nor a failure to maintain a home there in fact affects the continued existence of the domicil. Thus a temporary absence without intent to acquire a new home does not affect domicil." BEALE, supra, p. 182. See also AMERICAN LAW INSTITUTE. RESTATEMENT OF THE LAW OF CONFLICT OF LAWS. 1936. St. Paul, Minn. [ch. 2, secs. 16 and 23].
We turn to a review of the popular, the general legal, and immigration definitions of the term "domicile." The majority of the nontechnical dictionaries define domicile as a man's dwelling place, his home, or abode. ( Webster's New International Dictionary, 2d ed.; Oxford Universal English Dictionary; Macmillan's Modern Dictionary; Murray New English Dictionary; March Thesaurus of the English Language.) Several definitions specifically recognize that temporary absence does not destroy domicile. Thus, the New International Encyclopedia states that domicile is a person's legal residence which "may or may not coincide with the place where he in fact resides." The Century Dictionary and Cyclopedia describes domicile as "a place of habitual abode in contradistinction to a place of temporary sojourn." [Italics supplied.] In Funk Wagnall's New Standard Dictionary it is designated as "the places where one lives, as distinguished from the place where one stays temporarily." [Italics supplied.] It will thus be seen that in popular connotation, domicile designates a man's dwelling house, and that it specifically recognizes that he may be temporarily absent therefrom.
The fundamental conception underlying domicile in American and English jurisprudence is that of the home.
HALSBURY, (EARL OF). LAWS OF ENGLAND. vol. 6. London (at p. 198); STORY, supra (at p. 40); DICEY, A.V. A DIGEST OF THE LAW OF ENGLAND WITH REFERENCE TO THE CONFLICT OF LAWS. 1908. Ed. 2, — pp. London (at p. 82); KEENAN, supra (at p. 216); BEALE, supra (at p. 94); AMERICAN LAW INSTITUTE, supra (ch. 2, sec. 12).
"In fact the search for the domicile of any person capable of acquiring a domicile of choice is but a search for his `home'" ( District of Columbia v. Murphy, 314 U.S. 441 (1941) p. 455. Note 10).
It is uniformly recognized that a temporary absence for the purpose of pleasure, health, business, travel, education, as a Government official, or as a member of the armed forces does not affect domicile. An established domicile continues until a new one is acquired. The presumption of law is always against a change of domicile, which must in every case be proved with perfect clearness by the person alleging the change.
A mere temporary presence in a place for purpose of pleasure, health, or business does not affect domicil * * * (BEALE, supra, p. 163). See also: JACOBS, M.W. A TREATISE ON THE LAWS OF DOMICIL. 1887, 600 pp. Boston (at p. 218); STORY, supra (at p. 40); DICEY, supra (at p. 82); KEENAN, supra (at page 216); MOORE, JOHN BASSETT. A DIGEST OF INTERNATIONAL LAW. 1906. vol. III, 1022 pp. (at p. 814).
Now, it is elementary that, to effect a change of one's legal domicile, two things are indispensable: First residence in a new domicile; and second, the intention to remain there * * *. Mere absence from a fixed home, however long continued, cannot work the change ( Sun Printing and Publishing Association v. Edwards, 194 U.S. 377 (1904)).
Accord: Petition of Oganesoff, 20 F. 2d 978 (S.D. Calif., 1927); In re Kalpachnikoff, 28 F. 2d 288 (E.D. Pa., 1928); Swift Co. v. Licklider, 7 F. 2d 19 (C.C.A. 4, 1925).
AMERICAN LAW INSTITUTE, supra, sec. 23; BEALE, supra, p. 181; STORY, supra, p. 53; Petition of Oganesoff, supra.
HALSBURY, supra, p. 202; BEALE, supra, p. 245.
Rule 16 (1) of the May 1, 1917, edition of the Immigration Laws and Regulations reads as follows:
Under the seventh proviso to section 3, aliens who have lived in the United States continuously for 7 years may be readmitted after a temporary absence abroad, under such conditions as the Department may prescribe. In such cases convincing proof of a continuous residence of 7 years shall be exacted, and an absence not exceeding 6 months shall be deemed a "temporary absence" within the meaning of the law.
In the September 1921 edition the 6-month limitation on temporary absences was deleted and a definition of domicile was added. Section 16 (1) (b) then provided:
Domicile for purposes of this subdivision means that place where a person has his true, fixed, and permanent home and principal establishment and to which whenever he is absent he has the intention of returning. [Italics supplied.]
The definition set forth above was retained in the August 1922 edition and became rule 12 (A), paragraph 2, in the rules of February 1, 1924. It appears without modification of language in the rules of July 1, 1925, March 1, 1927, and as rule 13 (A) in the rules of January 1, 1930. The definition was again republished in the 1935 and 1937 editions of the immigration laws and regulations. In the comprehensive revision of our regulations in 1942, the definition, without any alteration, became section 132.1. These regulations, insofar as consistent with law, are themselves law and are binding on the Government as well as the alien.
8 U.S.C. 102, 222; Hamburg-American Line v. United States, 65 F. 2d 369 (C.C.A. 2, 1933); affd. 291 U.S. 420; Haff v. Tom Tang Shee, 63 F. 2d 191, 193 (C.C.A. 9, 1933); Ex parte Radivoeff, 278 F. 227, 229, (D.C., Mont. 1922).
The decisions interpreting the seventh proviso and the aforementioned regulations consistently permitted temporary absences from the United States, and the period of absence was considered in the computation of the 7-year period.
J---- P---- O'R---- was admitted to the United States for permanent residence in 1927. He remained here 4 years and then went to Rome as a divinity student and remained there for the balance of the 7-year period. He was afflicted with tuberculosis and was admitted under the seventh proviso by order of the Board of Review. It was held that his absence was of a temporary character, as he proposed to return to the United States at all times and retained his membership in his religious order in the United States.
In re O'R---- (55988/179, July 15, 1938). On September 13, 1938, it was held that the repatriation of subject's mother during his minority while he was in Rome entitled him to derivation citizenship since he was domiciled in the United States although physically present in Rome.
In the case of K---- B----, supra, the alien entered the United States in 1930. During the summers of 1931, 1934, 1935, and 1938 he made trips abroad. His wife was a legal resident of the United States since 1931. The subject was admitted under the seventh proviso, although it was claimed that he was liable to become a public charge and that he had had one or more attacks of insanity. The opinion stated:
He is eligible, therefore, since he has lived in this country in excess of 7 years and is returning to an unrelinquished lawful domicile. [Italics supplied.]
The administrative practice since the passage of the statute has been summarized as follows:
Continuous physical presence in the United States for 7 consecutive years is not necessary for establishment of the required domicile. * * *
The explicit language of the regulations, which have the force of law, reinforced by this history of consistent administrative action should be accorded great weight ( Costanzo v. Tillinghast, 287 U.S. 341) and should not be disturbed where it is not clearly unlawful ( Lucas v. American Code Co., 280 U.S. 445). Moreover, subsequent to the adoption of the regulations and the administrative position, the 1917 act has been amended a number of times without alteration of this clause (the last being the Act of June 28, 1940). This failure to act adversely to a long-standing practice gives rise to an inference that Congress has approved it ( Helvering v. Winmill, 305 U.S. 79; Costanzo v. Tillinghast ( supra) semble). That inference is ordinarily based, of course, upon the assumption that Congress was aware of the practice. In this case, however, there is no need to rely upon such an assumption, since the practice was in fact subjected to the critical scrutiny of Congress in the hearings on the Department of Labor 1941 Appropriation Bill, February 10, 1940. (Hearings before the Subcommittee of the Committee on Appropriations, House of Representatives, 76th Cong., 3d sess., pt. 1, p. 212-228.) At that time, a complete analysis of cases in which the seventh proviso had been exercised during the year 1939-40 was submitted in response to inquiries as to the character of benefit being bestowed by its use.
The fear of Mr. Cox expressed in the S---- case that the adoption of Mr. Wyzanski's definition, set forth In re D---- (55632/163) would lead to extension of the seventh proviso to cases of persons who lived here for a few days or weeks is certainly dispelled by an examination of the cases set forth in this Hearing Report. Generally a long period of physical residence in the United States is present in those cases where the proviso has been exercised. The length of physical residence is a factor that may be considered in determining whether to exercise jurisdiction rather than permitting it to determine whether jurisdiction exists. Furthermore, there is the additional safeguard that convincing proof of domicile and a departure with intention to return will be exacted.
Again in 1941 the cases in which the seventh proviso was exercised during the period from 1934 to 1939 were called to the attention of Congress. See Hearings Before Subcommittee No. 2 of the Committee on the Judiciary, House of Representatives, 77th Congress, 1st session, on H.R. 3, April and May 1941, Serial No. 2, (pt. II, p. 79). Accordingly, the inference of congressional approval is incomparably stronger than in the ordinary cases in which it is indulged. It may, indeed, be taken as practically conclusive when it is recalled that some of the amendments made to the act since that time have dealt with matters closely related to the very subject under discussion at the hearings. In such circumstances the silence of Congress can properly be taken only as explicit approval.
It is to be noted that seventh proviso was exercised in 416 cases during this period and that perjury, the ground of exclusion in 365 of these cases, was for the most part committed in connection with immigration and naturalization matters. The attitude of the Department toward perjury in immigration matters is reflected in its position on H.R. 3 (77th Cong. 1st sess.) favoring extension of the privilege of suspension and voluntary departure in cases of this type where good moral character was established.
To the same effect, see In re H---- (56038/883) [ see page 166, this volume], approved by the Attorney General Jan. 2, 1942; and In re B---- (V292720), approved by the Acting Attorney General Aug. 5, 1942 [ see page 204, this volume].
Other sections of our immigration and naturalization laws are significant. These sections are uniformly interpreted to permit a temporary absence without interruption in the continuity of residence or domicile.
It has been established by a long line of authorities that, in applying the provision of the naturalization laws that requires continuous residence within the United States for a period of 5 years next preceding the filing of the petition for citizenship that an alien is not required to be actually and physically within the United States for every day of the 5-year period. Note should be made in this connection that the courts regard residence and domicile as synonymous terms under the naturalization statutes. The ruling that the continuity of residence is not interrupted by temporary absences from the United States is, therefore, particularly pertinent to the issue presented by the instant case.
United States v. Dick, 291 F. 420, 422 (N.D.N.Y., 1923); United States v. Jorgenson, 241 F. 412, 414 (W.D. Mich., 1916); In re Reichenburg, 238 F. 859 (M.D. Pa., 1917); Petition of Schneider, 19 F. 2d 404; In re Schradieck, 29 F. 2d 24; In re Conis, 35 F. 2d 960 (S.D.N.Y., 1929).
United States v. Parisi, 24 F. Supp. 414, 419 (D.C., Md., 1938); Petition of Oganesoff, supra, note 8.
However, "residence" and "domicile" are not convertible terms when used in their exact connotation ( United States ex rel. Devenuto v. Curran, 299 F. 206, 211 (C.C.A. 2, 1924).
In re Schneider, 164 F. 335 (C.C., S.D.N.Y., 1908) involved the interpretation of the words "resided continuously" as used in the Naturalization Act of June 29, 1906. It was held that:
The word "continuously," which is not found in the act of 1802, cannot be construed literally; else a resident of New York would lose his right if he paid a visit to Europe at any time during the first 4 years of his residence, or spent a day in Jersey City within the year immediately preceding the day of filing his petition. The use of the word may be to prevent any intermediate change of domicile during the 5 years. If Congress had meant that the alien must remain actually within the territory of the United States uninterruptedly during the 5 years, it would have used language like that of the Act of March 3, 1813, c. 42, No. 12, 2 Stat. 811:
"For the continued term of 5 years next preceding his admission as aforesaid without being at any time during the said 5 years out of the territory of the United States."
The principle of the Schneider case has been followed without question to the present time.
In United States v. Mulvey, 232 F. 513 (C.C.A. 2, 1916), the same question was again presented, and it was stated (at pp. 515-516):
Must the alien be actually resident within the country for the entire period of 5 years, so that a temporary absence at any time during the period will deprive him of the advantage of the previous actual residence, and make it necessary to date the beginning of his "continued term of 5 years" from the date of his return, rather than from the date of his original arrival? It cannot be supposed that Congress intended any such unreasonable construction should be placed upon the act. Where adherence to the strict letter of a statute would lead to injustice or to manifest absurdity, it cannot be supposed that the law-making body intended any such result. In such cases the duty devolves upon the court to search out the true meaning of the statute and to permit the spirit or reason of the law to prevail over its letter. A thing may be within the letter of a statute, and yet not within the statute, because not within its spirit, nor within the intention of its makers. See Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S. Ct. 511, 36 L. Ed. 226 (1892).
This court does not entertain the idea that Congress meant by this enactment that an alien must be actually and physically within the United States for every day of the 5-year period.
In view of the stress placed on the word "lived" in the Assistant Solicitor General's memorandum in the S---- case, it is important to observe that the naturalization cases do not consider that the term precludes temporary absences. In re Kalpachnikoff, 28 F. 2d 288 (E.D. Pa., 1928) declares, in discussing the meaning of the words "resided continuously":
There are several different words in our language which in common speech convey the like meaning. Among them are "lives" and "resides" and phrases of the like import, such as "makes his home" and "has his domicile."
In United States v. Griminger, 236 F. 285 (N.D. Ohio, 1916), the court said:
In the statute under consideration here, looking to the evident function of the requirement of a definite period of residence, we feel that the word "resided" has the meaning of "lived"; that the applicant must be seen to have been a "resident" in the sense of "inhabitant" * * *. Such an interpretation affords opportunity for departures and limited absences from the country for social or business reasons, while at the same time leaving none for a substantial interruption of that continuity of inhabitancy necessary to secure the effect of the provision. [Italics supplied.]
Under the Quota Act of May 19, 1921, aliens returning from a temporary visit abroad are not included in the quota. Rule (2) (a) promulgated under this act defines a temporary visit abroad to mean:
An absence in any foreign country ( without relinquishment of domicile) not exceeding 6 months in duration.
Temporary absences from the country are likewise permitted under the exemption in the first proviso of section 3 of the act of 1917 that permits illiterates to reenter the United States where they have "resided therein continuously for 5 years." See United States ex rel. Devenuto v. Curran, 299 F. 206 (C.C.A. 2, 1924).
Thus it will be seen that there runs through our immigration and naturalization laws a principle that treats the alien resident in a favored position and grants him leave to absent himself from the United States for short periods. It is a well-known principle of international law that in the absence of legislation aliens who acquire a domicile within a sovereign State's jurisdiction, are, generally speaking, entitled to the rights enjoyed by a citizen. The Immigration Act of 1891 was held not to apply to returning resident aliens. There is support for the view that the Immigration Act of 1903 was not applicable to returning aliens lawfully domiciled in the United States, and it was urged that the 1907 act did not and should not apply to domiciled aliens. Bouve points out that:
BOUVE. THE IMMIGRATION ACT AND RETURNING RESIDENT ALIENS. Univ. of Pa. Law Review. 1911. vol. 59, p. 359.
Ibid, p. 362.
Ibid, p. 367.
Ibid. pp. 368-372.
Ibid, p. 372.
However, physically or mentally stricken while lawfully an actual resident of this country, such person is not liable to expulsion; it seems no more than fair to assume that where Congress would not expel it would not exclude * * * and to impute to Congress the intention or desire to exclude such a resident on returning from a trip abroad, during which he has been unfortunate enough to contract a disease, mental or physical, which would bar his admission if coming as an immigrant, would seem not less unreasonable than to suggest that he should be subject to expulsion because unlucky enough to become similarly afflicted while physically residing in the United States.
This was the background of the seventh proviso. In the debates that preceded its enactment, Mr. Stafford decried the exclusion of resident aliens
52 Cong. Rec., pt. 2, 1630, July 15, 1915.
who have gone abroad for a brief span of 3 months, on their return to this country without any objection as to their physical qualifications, have been absolutely forbidden to land, when they have lived here and intend to make this their home for all time. I cannot see how anyone can declare that to be the proper American spirit which should prompt an American Congress in the treatment of those who have not relinquished their American domicile upon their return after a temporary absence.
We conclude that the term "domicile," as employed in common usage by the courts and legal scholars, in the general body of common and statutory law, and particularly as used in the seventh proviso of section 3 of the 1917 Immigration Act, has the accepted meaning of permanent home, that it does not require continuous physical presence therein nor continuous physical presence in the country wherein it is situated. To give the word any other meaning would require recasting it in a form it was never intended to occupy in derogation of the spirit of the statute, the express language of the Immigration Rules, and the liberal attitude with which returning aliens are regarded. If Congress had meant 7 years' physical presence it would have used language like that of the Act of March 3, 1813. The purpose of the law, the American spirit favoring the reunion of families and the return of a man to his home and family, should prevail.
See In re Schneider, supra.
The alien has not abandoned his home. He left the United States with a reentry permit for a temporary absence. His wife, infant children, property, and employment are here. He is pursuing an application for citizenship. He has made this land his home for all time. He should be permitted to return to that home.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, a native of Canada, and subject of Great Britain;
(2) That the appellant was lawfully admitted to the United States for permanent residence on April 8, 1936;
(3) That the appellant resided in the United States permanently from April 8, 1936, to August 15, 1942, when he departed for Canada for a temporary visit to receive treatment for tuberculosis;
(4) That the appellant has at all times since his entry on April 8, 1936, maintained his permanent home in the United States;
(5) That 7 years have elapsed since the appellant's original entry;
(6) That the appellant seeks readmission for permanent residence and is in possession of a reentry permit;
(7) That the appellant has been certified as afflicted with class A, pulmonary tuberculosis.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the act of 1917 appellant is inadmissible as an alien afflicted with tuberculosis;
(2) That under the seventh proviso of section 3 of the act of 1917 the appellant is admissible in the discretion of the Attorney General as an alien returning to an unrelinquished domicile of 7 years.
ORDER: It is ordered that the appellant be admitted under the authority contained in the seventh proviso to section 3 of the Immigration Act of 1917.
The decision of the Board of Immigration Appeals is hereby affirmed.
The seventh proviso to section 3 of the Immigration Act of 1917 (U.S.C., title 8, sec. 136p) reads as follows:
* * * aliens returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years may be admitted in the discretion of the Secretary of Labor [now the Attorney General], and under such conditions as he may prescribe * * *.
The applicant was lawfully admitted for permanent residence and was physically within the country for 6 years and 4 months. He then went to Canada for medical treatment upon advice of his physician, first obtaining a reentry permit from the immigration authorities, and leaving here his wife, his children, a furnished apartment, and other property. He had previously filed a preliminary form for naturalization and both he and his wife intended to become citizens. Before leaving the country he was advised by the immigration authorities that he would be readmitted notwithstanding the state of his health. He had what is described in the file as "noncontagious tuberculosis." After spending several months in a sanitorium he presented himself for readmission within the time limit prescribed by his reentry permit. He has not yet been readmitted (but has not been excluded) because, while the tuberculosis is arrested, the Public Health Service regards his condition as too recent to be considered as cured. This impediment may be waived if the proviso is applicable.
The opinion of the Board indicates that it entertains some doubt regarding the implications to be drawn from the rulings in the S---- case ( In re C---- H---- de S----, 55872/461, February 1, 1943) and the P---- case ( In re A---- E---- M---- P----, 55973/653, June 4, 1941). Those cases dealt with distinguishable factual situations, involving, respectively, a deportation and an exclusion order which effectually barred the alien from the country long before the lapse of 7 years from the time of original entry. It was urged, in effect, that the statutory requirement of 7 years' domicile might be satisfied with the passing of 7 years from the time the alien first set foot upon our shore with intent to remain here, notwithstanding that his entry might be unlawful and notwithstanding the degree of promptness and diligence with which he might be apprehended and forced to go and remain beyond our borders. It was concluded that the Congress did not intend the word "domicile" to be understood in so broad a sense and contemplated a more limited meaning, as actual residence or place of abode.
However, "domicile" does not require physical presence during every day of the 7-year period. This is adequately supported by the precedents cited in the opinion of the Board. I certainly had no intention of implying anything to the contrary when approving in the S---- case the interpretation previously adopted by Assistant to the Attorney General McGuire in the P---- case. Nor do I feel that Mr. McGuire had any such thought.
A bona-fide temporary absence such as that disclosed in the present case is undoubtedly permissible, and no valid objection can be based upon the mere fact that it occurred near the end of the 7-year period rather than at an earlier time.
I have signed the decision of the majority of the Board as required by section 90.3, title 8, Code of Federal Regulations. I am unable to agree with it. The case is concerned with an interpretation of the phrase "an unrelinquished United States domicile of 7 consecutive years" as used in the seventh proviso of section 3 of the Immigration Act of 1917 (8 U.S.C. 136). I believe that the Attorney General's decision in the S---- case (55872/461) is controlling upon us and prevents this Board from exercising discretionary action under the seventh proviso of the Immigration Act of 1917.
I agree that the case before us has appeal, and if permissible under the law, I believe readmission should be authorized. My position is that there is no power to admit under the seventh proviso. The majority opinion merely restates (with some enlargement) the reasoning employed by this Board in its decision of January 6, 1943, in the S---- case. The Board's decision in that case was reversed by the Attorney General.
When finally cured of tuberculosis discretionary action will not be required.
The factual distinction between this case and the S---- case is unimportant. In each, 7 years had not elapsed from the origin of United States domicile until the last departure of the alien from the United States. In each, to be admissible under the seventh proviso there must be "tacked on" to that part of the domicile actually spent in the United States, the "temporary absence abroad" from which the alien is returning. This, I think, is just what the S---- decision held may not be done.
In considering the S---- case, the Attorney General stated he concurred in the views of the Assistant Solicitor General (to whom he had referred the matter) concerning the meaning of the word "domicile." The Assistant Solicitor General in his memorandum to the Attorney General on this point made the following observation:
The language of Senate Report 355, Sixty-third Congress, second session, mentioned in the above Senate Report, reads:
"Page 11, line 21, following the words `Canal Zone,' insert ` Provided further, That aliens who have declared their intention to become citizens and aliens returning after temporary absence to an unrelinquished United States domicile may be admitted in the discretion of the Secretary of Labor, and under such conditions as he may prescribe.' As the term `alien' has been defined in section 1 of the act, and construed with reference to the acts of 1903 and 1907 by the Supreme Court ( Lapina v. Williams, 232 U.S. 78), it seems only just and humane to invest the Secretary of Labor with authority to permit the readmission to the United States of aliens who have lived here for a long time and whose exclusion after a temporary absence would result in peculiar or unusual hardship." [Italic supplied.]
This shows, I think, that the purpose of the Congress in enacting the seventh proviso was to relieve peculiar and unusual hardships which would result from the severing of ties and connections, domestic or otherwise, which probably, if not inevitably, would be formed by an alien living here for a long period of time. This purpose would be fully accomplished by giving the word "domicile" the same meaning as "residence." On the other hand, giving it the technical legal meaning ascribed to it in the Wyzanski opinion would permit the benefits of the proviso to be claimed by and extended to a person who actually lived here for only a few days or weeks, without the formation of any such ties or connections, and who then left the country (or was deported) and lived elsewhere for the remainder of the 7-year period. I do not believe the Congress intended any such result, nor do I believe the word "domicile" should be construed in such a way as to permit it.
In the S---- case the Attorney General also made reference to rejection by the Department in a memorandum of June 4, 1941, in the case of A---- E---- M---- P---- of the ruling of the Solicitor of the Department of Labor in the case of S---- D---- in which the word "domicile" was given the same interpretation as that placed upon it by the majority of this Board in the instant case. In the June 4, 1941, memorandum it is stated:
The manifest purpose of the provision (the seventh proviso) is to extend leniency to aliens who have established and maintained homes in the United States for a specified minimum period of time, if after a temporary visit abroad they are found on their return to the United States to be inadmissible under the immigration laws. The period fixed by law is 7 years. Consequently, any alien who has not lived in the United States for at least 7 years is not entitled to the benefit of this provision of law. Whether his residence in the United States before the expiration of the 7-year period is cut short by a voluntary departure or by deportation would seem to be immaterial.
Applying the principle thus enounced concretely to cases coming before us, to me, if the foregoing quotations mean anything, they mean that from the date of the beginning of an alien's domicile in the United States until the date of his last departure from the United States, 7 years must elapse in order for an alien to qualify for consideration for readmission to this country under the seventh proviso of section 3. It is wholly illogical to hold in the S---- case that 4 years' and 4 months' actual presence in the United States (that is, from the date of the beginning of United States domicile until last departure from the United States) was insufficient to meet the requirement of 7 years' domicile, and to hold in the case now before us that 6 years' and 4 months' actual presence in the United States (from the date of the beginning of United States domicile until the last departure from the United States) does meet the requirement of 7 years' domicile. In each case, of course, 7 years elapsed from the beginning of United States domicile until the date of the consideration of the cases. But in each instance, to make up the 7 years' domicile, it is necessary to "tack on" to the time spent in the United States the period of absence abroad from which the alien is returning to the United States. Or in other words, it is necessary to employ the word "domicile" in its usual legal meaning, which was specifically rejected by the Attorney General in the S---- decision.
The only distinction between the instant case and the S---- case is that in the latter there were intervening orders of exclusion. These were necessary because at the time they were entered (even under the view taken by the majority of this Board), the alien had not an established domicile of 7 years. When those orders were entered 7 years had not elapsed from the date of origin of domicile.
If the S---- decision is to be modified or reversed, I think it is within the exclusive jurisdiction of the Attorney General to do so.
Mr. Nettleton joins me in this dissent.