A-6316992
Decided by Board October 10, 1950 Decided by Acting Attorney General October 25, 1950
Reentry permit — Section 10 (f) of the Immigration Act of 1924 — Effect of such document to show alien to whom issued returning from a temporary visit abroad.
Upon the return to the United States of an alien with a reentry permit which had not been procured by fraud or misrepresentation (nor had extensions thereof been secured by such means), such reentry permit (as extended) must be accepted as establishing that the alien to whom it was issued is returning from a temporary visit abroad. ( 4 IN Dec. 189.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
BEFORE THE BOARD
(October 10, 1950)
Discussion: This case is before us on a motion by the Immigration and Naturalization Service asking that we reconsider our decision of July 31, 1950, which sustained the appeal and authorized the appellant's admission to the United States; and instead, that we affirm the action of the Service excluding the appellant from admission to this country.
The principal issue involved is a question of law, to wit: The effect to be given reentry permits in accordance with the provisions of section 10 (f) of the Immigration Act of 1924. The appellant involved in this proceeding is a native and citizen of Nicaragua. He was first lawfully admitted for permanent residence upon presentation of an immigration visa on June 6, 1929. He was then a lad of 9 years. After this admission he testified he remained in the United States for 2 years, went back to Nicaragua, stayed 3 months and came back to the United States. He stayed on the second occasion about 2 years and then left the United States. He next returned, he testified, about 1942. There is a record of his admission with an immigration visa issued as a native of Nicaragua on September 10, 1942. He then lived here for about 2 years. He was employed and also went to college. He left the country roughly about 1944, stayed away about 2 years and was again admitted as a nonquota immigrant because of birth in Nicaragua, at Laredo, Tex., on May 29, 1946. After this admission he lived in the United States about 2 years, principally in San Francisco, and was engaged in gainful employment. He applied for a reentry permit which was issued to him on January 20, 1948. On applications properly made the validity of the permit was extended first, to July 20, 1949; second, to January 20, 1950; and third, to July 20, 1950. He arrived at Miami, Fla., May 9, 1950, well before the validity of the reentry permit expired.
The first extension of the reentry permit was based on the following statement made by the appellant: "I desire the extension for the following reasons or purposes: I am working as secretary to my father, the Nicaraguan Minister to Colombia." His foreign address was given as the Legacion de Nicaragua, Calle 46 No. 15-55 — Bogota, Colombia, S.A.
In his application for the second extension of the validity of the permit, the appellant's affidavit stated:
That the reason for asking for a further extension of the above described permit is that he has been employed by the Nicaraguan Government in the diplomatic service. He has returned to Nicaragua from Colombia and plans to go to El Salvador to look into the business prospects. He plans to return to the United States in December, 1949.
The third application for extension of permit executed January 21, 1950, before an American vice consul at Managua, gives the reason for requesting extension, as follows:
He is employed by the Nicaraguan Government as secretary to the Nicaraguan Legation in Colombia. He plans to return to the United States in June 1950. The reason this affidavit is delayed is that Mr. V---- was away from Managua for a matter of weeks and unable to appear before an American consular agent.
The decision of the Assistant Commissioner is based on the premise that the appellant's testimony shows he has not maintained a domicile in this country and that he has been employed abroad with no intention of living permanently in the United States, that he is not returning from a temporary visit abroad, and that the reentry permit is not valid for readmission to the United States as a returning resident. Point was also made of the fact that the appellant did not indicate in his testimony that now he intended to remain in the United States permanently. On this point he was asked this question:
Q. Do you intend to remain in the United States permanently on this trip? [Emphasis supplied.]
A. No; not permanently.
Also in pertinency to this are the following questions and answers:
Q. Do you have any fixed place of residence or domicile in the United States?
A. Well, no; I wouldn't say so. This is the first time I have come to this side of the States.
Q. I mean anywhere in the United States?
A. Yes; in San Francisco, 715 Duboce Avenue.
Q. What sort of an establishment is there?
A. My sister lives there, and that is her home. She is married.
Q. Do you intend to make your home there now?
A. No.
Q. How long do you intend to be in the United States on this trip?
A. Well, I couldn't exactly say.
Q. What is the maximum time?
A. Maybe 6 months, or maybe over 6 months, maybe longer.
Q. Do you intend to work in the United States during this time?
A. I don't think so.
Q. Do you intend to establish a home in the United States?
A. Live here? No.
This testimony admittedly is somewhat equivocal, but we must remember that the appellant is a young unmarried man who has worked at a variety of jobs in different localities but still seems to consider his sister's home in San Francisco as his residence. In his appeal to this Board, the appellant states as follows:
That I consider my married sister's home in San Francisco as my fixed residence since this is the place to which I return whenever I am in the United States, though I plan to go to Chicago for medical treatment for a period of 6 months or longer.
The appellant also points out that he went to an American vice consul in Managua who personally told him that the reentry permit he had was all that was necessary for his lawful admission to the United States. In argument before the Board, the Service representative objects to our consideration of anything except the transcript of the record. While as a matter of law we are bound by the record compiled before the board of special inquiry, we must remember that this appellant was not and is not now represented by counsel. If there is any question as to the facts in the case, it should be a matter of elementary procedure for the Service to request a reopening so that the case could be developed more thoroughly. At a minimum, this we would direct if we were not satisfied that on this record, as a matter of law, admission must be authorized.
The issue in this case is whether a reentry permit obtained without misrepresentation or fraud and extension of its validity secured by a frank revelation of the truth has the effect of establishing in accordance with the provisions of section 10 (f) of the 1924 act that the alien "is returning from a temporary visit abroad." We are concerned only with the appellant's status of a returning resident under the 1924 act. It is, of course, clear if the appellant upon application for readmission should be found inadmissible for other reasons, such as afflicted with tuberculosis, the reentry permit gives him no right to readmission.
In this case, the Service takes the position it is at liberty to go into the issue brand new just as if it had never seen or heard of the case before. This it does and reaches the conclusion that the appellant is not returning from a temporary visit abroad.
Section 10 (f) of the Immigration Act of 1924 as quoted previously by us in our prior decision is as follows:
A permit issued under this section shall have no effect under the immigration laws, except to show that the alien to whom it is issued is returning from a temporary visit abroad; * * *.
The Service chides us because we did not quote the remaining portion of the sentence. We did not because it is immaterial to a decision in this case. The remaining part of the sentence reads as follows:
but nothing in this section shall be construed as making such permit the exclusive means of establishing that the alien is so returning.
The Service would use this language as giving it carte blanche authority to relitigate the returning resident status of an alien with a permit. It cites no authority for such an alarming proposition. This language has been construed in Johnson v. Keating, 17 F. (2d) 50 (C.C.A. 1, December 31, 1926), as meaning that a reentry permit is a document an alien may obtain to prove his resident alien status, but he is not limited to such a method and may establish his right to reenter as a returning resident although without a permit or an immigration visa. This ruling was based on regulations then in effect which have subsequently been changed. The importance of the decision is only to show that the language upon which the Service relied so heavily goes only to the fact that the alien is not limited to establishing a returning resident status by a reentry permit. It has never been interpreted judicially as giving the Service authority to find that an alien is not returning from a temporary visit abroad even though he has a permit.
There are judicial decisions to the effect that a reentry permit is only prima facie evidence of the alien's status. The language employed by the courts, however, must be considered in light of the issue then before the courts. In U.S. ex rel. Orisi v. Marshall, 46 F. (2d) 853 (C.C.A. 3, January 29, 1931), such language was employed but the court pointed out that the reentry permit was secured by the alien giving the wrong date of his last entry into the United States. This clearly was affirmative fraud on the part of the alien in securing the permit. In U.S. ex rel. Iodice v. Wixon, 56 F. (2d) 824 (C.C.A. 2, March 7, 1932), the court stated:
In the absence of any proof that this reentry permit had been obtained through fraud, failure to give it the force and effect accorded to it by the statute was arbitrary and capricious action which made the proceedings, which culminated in his exclusion because he had no quota visa, unfair.
In that case the alien had obtained a reentry permit on the basis of an entry in 1913. The position of the Immigration and Naturalization Service was that he had been in Italy for a considerable period of time thereafter, and that his last entry was not in 1913 and he had not established that he had been legally admitted upon his last entry. The court found that the evidence to establish the alien's absence from the country subsequent to 1913 unsubstantiated and hence that the permit must be given the force and effect contemplated by the statute.
From the foregoing decisions, we think it is clear that fraud or misrepresentations in obtaining a reentry permit where if the truth had been known the permit could not legally have been issued renders the permit invalid. On the other hand, where there has been no fraud or misrepresentations employed in the application for the permit or in securing any extension of its validity then it is necessary to accord the permit the effect prescribed by statute; that is, the permit shows that the alien to whom it is issued is returning from a temporary visit abroad. We feel, therefore, that in the absence of fraud or misrepresentation, it is not proper for the immigration authorities to re-try the question of whether the alien has maintained a residence in the United States or his absence from the United States was temporary.
The Service points to section 176.202 (e), which provides that an alien who is a lawful permanent resident of the United States, who is returning from a temporary visit abroad, may present an unexpired permit to reenter in lieu of a passport or visa. It also points to section 176.101 (n), which says that a lawful permanent resident of the United States means an alien who has been legally admitted for permanent residence and who has since such admission maintained his domicile in the United States. The argument of the Service is that the record as a whole does not show that the appellant has maintained a domicile in the United States. As we have stated, since the Service issued a reentry permit and extended the validity thereof with no misrepresentations as to the facts, we believe it is precluded now from going into the question of whether the appellant maintained a domicile in the United States. The Service should have remembered these regulations when the reentry permit application was made and when extensions of the validity of the permit were sought, if material to the facts in the case. Parenthetically, we observe nowhere in the law in relation to this particular subject is the word "domicile" used. The 1924 act contemplates residence. The term "domicile" as used in the regulations, we feel, must be construed as meaning "residence" rather than "domicile" as otherwise the regulation purports to amend the law.
There is another phase of this case which does require very serious consideration. The reentry permit was sought in good faith, was issued without misrepresentations, the validity of the permit was extended with the full truth being presented to the immigration authorities, and the appellant before embarking for the United States was informed that the permit was valid for his admission to this country. On this set of facts, good faith on the part of the Government requires it to recognize the validity of the permit. It is particularly arbitrary and capricious for this Department on the one hand to issue a document which clearly indicates to the holder his right to return to the United States under the status of a returning resident, and then upon his arrival at a port of entry to re-litigate the entire issue and deny admission where fraud or misrepresentations are not present.
It is our conclusion, therefore, that as a matter of law a reentry permit secured without fraud or misrepresentation or its validity extended without fraud or misrepresentation, must be given the effect set forth in the statute (sec. 10 (f), Immigration Act of 1924), to wit: That the holder of the reentry permit is returning from a temporary visit abroad. Even if not required by law to attach the weight to the reentry permit, as a matter of governmental good faith it should be done.
Order: It is ordered that the motion of the Service be denied.
The Service has requested that if we do not agree with their decision that the case be submitted to the Attorney General. Since there is involved a question of law and an important question of policy, we will certify the case to the Attorney General under the provisions of Title 8, Code of Federal Regulations, section 90.12.
The decision and order of the Board of Immigration Appeals dated October 10, 1950, are hereby approved.