Interim Decision #2245 

MATTER OF CASTRO 

In Deportation Proceedings 

A-10489741 

Decided by Board December 4, 1978 

(1) An alien admitted for permanent residence who departed to Mexico in May 

1963; who severed his ties with the United States, moved his family to Mexico, 

acquired land, built a house, and obtained steady employment in Mexico, 

where he remained for six years, except for his numerous brief business trips 

to the United States, was not, upon his return to the United States in 1969, 

"returning from a temporary visit abroad" within the meaning of section 

101(a)(27)(B) of the Immigration and Nationality Act and was not entitled to 

admission as a returning resident through presentation of his Alien Registration Receipt Card (Form 1-151). 

(2) Notwithstanding he possesses the requisite familial relationship, the alien in 

the instant case is ineligible for the benefits of section 241(f) of the Act, as 

amended, since he was required to be in possession of an immigrant visa at 

the time of his return to the United States from Mexico in 19R9 and, therefore, 

was not "otherwise admissible" (Matter of Lee, 13 I. & N. Dec. 214, 218 (1969)).* 

CHARGE: 

Order: Act of 1952—Section 241(aX1) [8 U.S.C. 1251(a)(1)] Excludable at entry 

under section 212(a)(20)—no valid immigrant visa. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Sam Williamson, Esquire Bernabe Q. Maldonado 

1320 Americana Bldg. Trial Attorney 

Houston, Texas 7'7002 

The respondent has appealed the decision of an immigration 

judge which was rendered on April 13, 1973, and which ordered the 

respondent's deportation. The appeal will be dismissed. 

The respondent is a native and citizen of Mexico who was 

admitted to the United States as an immigrant in 1956. In May of 

1963 the respondent returned to Mexico, apparently at the behest 

of his father. He subsequently purchased land and built a house in 

Mexico. He resided there with his family until September of 1969; 

Reversed and remanded. See Castro-Guer /cat rero /a v. immigration and Ncsturaii 

ration Service, 503 F.2d 964 (CA. 5, 1974). Affirmed, 515 F.2d 616 (C.A. 6, 1975). 

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Interim Decision #2245 

however, he claims to have entered the United States once or 

twice a month during that period in connection with his job as the 

manager of a Mexican hotel. While the respondnet has testified 

that his preference was to remain in the United States, and that 

he only stayed in Mexico to please his father, he nevertheless 

substantially severed his connections with the United States for a 

period of six years and failed to take any steps which might 

indicate an attempt to retain permanent resident status. 

After his father's death in 1969, the respondent returned to the 

United States, evidently with the expectation of residing here 

indefinitely. Since then he has occasionally returned to Mexico for 

a visit or vacation. He last entered the United States in March of 

1971. Subsequent to his admission as an immigrant in 1956, all of 

the respondent's entries appear to have been accomplished 

through the presentation of an alien registration receipt card 

(Form 1-151). It is on the basis of essentially these facts that the 

Service charged the respondent with being deportable as an 

immigrant not in possession of a valid entry document. 

At his hearing, the respondent denied deportability, contending 

that section 241(f) of the Immigration and Nationality Act exempts him from deportation under the charge contained in the 

Order to Show Cause. On appeal, the respondent also asserts that 

there was no finding that he had abandoned his residence in the 

United Stales, apparently reasoning that he would not be deporta -

ble in the absence of such a determination. We shall deal with this 

latter issue first. 

As briefly indicated earlier, the respondent was charged with 

being deportable under section 241(aX1) as an alien excludable at 

his latest entry under section 212(a)(20) of the Act. Section 

212(aX20) mandates the exclusion of any immigrant who in seeking 

admission does not possess the required documentation. Section 

101(aX15) defines "immigrant" to include every alien who cannot 

qualify as a nonimmigrant. It is clear that the respondent would 

not have been classifiable as a nonimmigrant, given his intention 

to reside indefinitely in the United States. See section 214(b), 

Immigration and Nationality Act. Thus, although the respondent 

had once been admitted for the purpose of residing permanently, 

he was still subject to the regulations and the provisions of the Act 

regarding the qualifications necessary for readmittance. 

Section 211(b) of the Act is the basic statutory provision authorizing the liberalization of documentary requirements for aliens 

previously admitted as immigrants. Pursuant to this section and 

the related regulations, an alien who qualifies as a "returning 

resident immigrant" may be admitted in the absence of an immigrant visa or, in an appropriate case, without any other documen493 
Interim Decision #2245 

tation. Under section 101(aX27)(I3), to which section 211(b) refers, a 

"returning resident immigrant" is defined as "an immigrant, 

lawfully admitted for permanent residence, who is returning from 

a temporary visit abroad." Although there is an issue as to 

whether the respondent could qualify as having retained his 

status as an alien lawfully admitted for permanent residence, 1it is 

evident that he cannot be viewed as returning from a temporary 

visit abroad, and he fails on this ground to satisfy the statutory 

definition of a "returning resident immigrant." 

The cases which have construed the phrase "temporary visit" 

have established several factors which must be taken into consideration. First, the duration of the absence has a definite bearing 

on whether it can be deemed "temporary." See Gamero v. INS, 367 

F.2d 123 (C.A. 9, 1966). Cf. Matter of Salviejo, 13 I. & N. Dec. 557 

(BIA. 1970) Second, the location of the alien's family ties, property 

holdings and job all relate to a determination regarding the 

character of a visit abroad. Santos v. INS, 421 F.2d 1303 (CA. 9, 

1970); Matter of Salviejo, supra. Finally, the intention of the alien 

with respect to both the location of his actual home and the 

anticipated length of his excursion have been deemed of significance to this inquiry. U.S. ex rel. Lesto v. Day, 21 le.2d 307 (C.A. 2, 

1927); Matter of Montero, Interim Decision No. 2216 (BIA 1973). 

As indicated, on the facts of this case the respondent cannot be 

viewed as returning from a temporary visit abroad. Except for his 

numerous brief business trips to the United States, the respondent 

remained in Mexico for six years. He severed his ties with the 

United States, moved his family to Mexico, acquired land, built a 

house and obtained steady employment there. Thus, regardless of 

what his ultimate intent might have been, we hold that the 

respondent's stay in Mexico cannot be deemed temporary. He 

therefore was not entitled to admission through the presentation 

of his alien registration receipt card. 

The respondent nevertheless maintains that he is saved from 

deportation by the operation of section 241(f) of the Act. By its 

terms, section 241(f) precludes the deportation of an alien on a 

charge relating to the procurement of entry or documentation 

through fraud or misrepresentation, if the alien was "otherwise 

admissible at entry" and is the spouse, parent or child of a United 

States citizen or of an alien lawfully admitted for permanent 

residence. The respondent in this case has two citizen children and 

therefore clearly satisfies the familial relationship requirement of 

'Compare Matter of Antolin, 12 I. & N. Dec. 127 (BIA, 196?), and Matter of 

Sias, 11 I. & N. Dec. 171 (BIA, 1965), with Gooch v. Clark, 433 F.2d 74 (C.A. 9, 

1970), cert. den., 402 U.S. 995 (1971), and Matter of M—P—, 9 I. & N. Dec. 747 

(BIA, 1962). 

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Interim Decision #2245 

this section. There is some question regarding whether the requisite misrepresentation exists. However, we need not resolve this 

issue because we have concluded that the respondent does not 

meet the "otherwise admissible at entry" qualification of the 

statute, as construed by prior administrative decisions. 

In Matter of Lee, 13 I. & N. Dec. 214, 218 (A.G. 1969), the 

Attorney General interpreted the "otherwise admissible" clause of 

section 241(f) to require that the alien have completed the administrative screening process necessary for entry as an immigrant. 

Although the decision in Matter of Lee, supra, was reversed in Lee 

Fook Chuey v. INS, 439 F.2d 244 (CA. 9, 1970), we have deemed 

ourselves bound by the Attorney General's position, and we have 

thus felt constrained to reject the position taken by the Ninth 

Circuit. See Matter of Mangabat, Interim Decision No. 2131 (81A 

1972); Matter of Perez-Echeverria, Interim Decision No. 2200 (BIA. 

1973). 

In this case, the respondent had lost his status as an alien 

lawfully admitted for permanent residence. Since he had not 

acquired a nonimmigrant status, he must be viewed as any 

immigrant alien seeking an initial admission to the United States. 

The respondent's lawful entry would therefore have required his 

presentation of a valid immigrant visa. To obtain an immigrant 

visa, it would have been necessary for the respondent to submit 

himself to the consular screening process mandated by the Act. 

Since the respondent has not undergone the required screening 

for the entry in question, and since the decision in Matter of Lee, 

supra, makes this element a prerequisite to a favorable determination on the "otherwise admissible" criterion of section 241(0, it is 

evident that the respondent fails to meet the conditions imposed 

by that provision. Accordingly, we find that his deportability has 

been established by evidence that is clear, convincing and unequivocal. 

Having reviewed the record thoroughly, we find that a remand 

on the issue of voluntary departure is unnecessary. We are 

satisfied that the respondent is eligible for that relief, and consequently we will grant him 30 days voluntary departure on the 

record before us. 

ORDER: The appeal is dismissed with respect to the application 

under section 241(f) of the Immigration and Nationality Act. 

Further order: The decision of the immigration judge is modified, and the respondent is permitted to depart from the United 

States voluntarily within 30 days from the date of this order or 

any extension beyond that time as may be granted by the District 

Director; and in the event of failure so to depart, the respondent 

shall be deported as provided in the immigration judge's order. 

495