MATTER OF S J S 

Creation of Record of Lawful Entry 

A-5859139 

Decided by Assistant Commissioner October 20, 1959 

Record of lawful entry —Section 249 of the 1952 act —Residence. 

Applicant who was deported from the United states in 1945 after having 

entered as a crewman in 1939 and who thereafter was readmitted to the 

United States at various times in pursuit of his calling as a crewman held 

inoligihle on two counts for the benefits of section 249 of the act. (1) Deportation in 1945 broke the conunmty of his reidenco in the United States 

(cf. Matter of P , A-4577395, Interim Decision No. 976). (2) Mere temporary admissions as a nonimmigrant crewman over a period of years do 

not establish continuous "residence" in the United States within the meaning of the statute. 

APPLICATION: For creation of a record of lawful entry for permanent residence under the provisions of section 249 of the Immigration 

and Nationality Act. 

BEFORE THE ASSISTANT COMMISSIONER 

Discussion: The applicant., a 54-year-old male, a native and 

citizen of China, first entered the United States on June 17, 1939, 

as a crewman. He remained in the United States illegally and a 

warrant of arrest in deportation proceedings was served on him on 

June 26, 1942. On February 12, 1943, the Board of Immigration 

Appeals ordered him deported and granted him a waiver of inadmissibility under the 9th proviso of section 3 of the Act of February 

5, 1917 for entry into the United States from time to time as a 

bo7,a, fide crewman. A warrant of deportation was issued the same 

date and the applicant effected his own deportation by departing 

from the United Slates on SoptembAr 22, 1945, as a crewman aboard 

the SS. Pm Berlanqa. 

Subsequently, the applicant was admitted to the United States at 

various times an a crewman under the provisions of section 3(5) of 

the Immigration Act of 1924. On July 17, 1951, he applied for 

suspension of deportation under the provisions of section 19(c) of 

the Immigration Act of February 5, 1917. It was found that he 

had been last admitted to the United States un June 4, 1951, at San 

Francisco under section 3(5) of the Immigration Act of 1924 for a 

period of 29 days and had remained for a longer period than per463 
milted under that section of law. A warrant of arrest in deportation proceedings was issued on September 17. 1951, but the applicant 

departed from the -United States before service of the warrant of 

arrest. He filed an application for permission to reapply after 

arrest and deportation with the District Director at San Francisco 

on September 12, 1952. This application was denied bn January 

12, 1953, and no appeal was taken. A warrant of arrest in deportation proceedings was issued on February 9, 1954, charging that at 

the time of entry on January 3, 1954, the applicant was inadmissible 

under section 212(a) (17) of the Immigration and Nationality Act 

as an alien who had been arrested and deported and who had not 

been granted permission to reapply. He was accorded a hearing on 

February 10, 1954, and was granted the privilege of departing voluntarily from the United States at his own expense. He departed 

on March 20, 1954, as a crewman. 

The applicant again made application for permission to reapply 

for admission after d Tortation and such permission was granted 

on June 30, 1954. An order to show cause in deportation proceedings was issued on February 17, 1958, alleging that the applicant 

had last been admitted as a nonimmigrant crewman at San Francisco on December 13, 1957, for a period not to exceed 29 days and 

that he remained in the United States for a longer period than 

authorized. He was accorded a hearing on February 26, 1958, and 

the special inquiry officer granted him the privilege of voluntary 

departure. Pursuant to that order he departed from the United 

States on March 22, 1958. The applicant is married and his wife 

and children reside in Yokahama, Japan. 

On December 2, 1958, the instant application was filed. The applicant alleges that he has resided continuously in the United States 

since June 17, 1939. The application was denied by the district 

director on January 19, 1959, on the ground the applicant had failed 

to establish continuous residence in the United States since prior 

to June 28, 1940, in that the deportation on September 22, 1945, 

constituted a break in residence. That order was appealed to the 

Regional Commissioner at San Pedro and on April 13, 1959, the 

Regional Commissioner affirmed the district director's order. The 

case was then certified to this office. 

The sole issue to be determined is whether the applicant has resided continuously in the United States since June 17, 1039. The 

applicant cites the decision in Matter of .31 I. & N. Dec. 82, 

to establish that his deportation on September 22, 1945, did not 

break the continuity of his residence. That decision concerned the 

effect of deportation upon an alien's eligibility for relief under the 

7th proviso of section 3 of the Act of February 5, 1917. The 1917 

act was repealed upon enactment of the Immigration and Nation464 
ality Act and section 1U1 (a) (33) of the Immigration and Nation 

ality Act now defines residence, for the purposes of the Act, as the 

principle, actual dwelling place in fact, without regard to intent. 

It has been held that departure from the United States as a result 

of exclusion or expulsion proceedings breaks the continuity of residence for the purposes of section 249 of the 1952 act (Matter of 

p , A —z1.7,7729f, Interim Decision No. 976). The applicant departed voluntarily under a warrant of deportation on September 

22, 1945. Therefore, the continuity of his residence was broken. 

There is an additional basis for finding that the applicant has 

failed to establish continuous residence in the United States since 

June 17, 1939. In his application form applicant does not show a 

place of residence in the United States from November 1945 to 

November 1958, and apparently relies on admissions as a crewman 

in pursuit of his calling to establish residence. However, in statements made before officers of this Service on September 11, 1952, 

May 18, 19,74, and on January 15, 1050, the applicant each time 

stated that he entered the United States solely in pursuit of his 

calling and intended to reship as a crewman. In the statement made 

on May 18, 1954, at San Francisco he stated that be had no place 

to stay in San Francisco and would remain aboard the ship while 

it was in port. He also stated that the United States address he 

had given was merely a mail drop. Mere temporary admissions 

over a period of years as a nonimmigrant crewman cannot be used 

now as a basis for establishing continuous residence in the United 

States for the purposes of section 249 of the 1952 act. 

Inasmuch as the applicant has failed to establish continuous residence in the United States since a date prior to June 28, 1940, the 

decision of the Regional Commissioner will be affirmed. 

Order : It is ordered that the decision and order of the Regional 

Commissioner be affirmed. 

Editor's Note: Motion of the subject alien for summary judgment, filed with 

the United States District Court for the Northern District of California, was 

denied by that court on March 11, 1960 (see Sit Jay Sing v. Nice, 182 F. Supp. 

292). 

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