March 24, 1977

Effect of Presidential Pardon on Aliens Who Left

the Country to Avoid Military Service

You have asked us to examine the question of whether the President’s Proclamation and accompanying Executive order granting a 

pardon to all those who violated the Military Selective Service Act 

between August 4, 1964, and March 28, 1973, will have the effect of 

removing the exclusion of aliens who departed from or remained outside the United States to avoid or evade training or service in the 

Armed Forces. We agree with the Immigration and Naturalization 

Service (INS) that the pardon should be given that effect. We also 

agree with INS that whether an alien seeking readmittance should be 

regarded as a permanent resident alien returning from a temporary visit 

abroad, is a question of fact that should be decided on a case-by-case 

basis. But we believe that the terms of the statute and the case law 

construing it permit more flexibility in making this determination than 

the INS appears to suggest. Finally, we do not believe that an expatriated citizen may properly be regarded as an alien lawfully admitted for 

permanent residence.1

I. Applicability of the Pardon to 8 U.S.C. § 1182(a)(22)

An alien is excluded from entry into the United States if he or she is 

within any of the classes enumerated in 8 U.S.C. § 1182(a).2 Among the 

aliens excluded under this provision are:

Aliens who are ineligible to citizenship, except aliens seeking to 

enter as nonimmigrants; or persons who have departed from or 

who have remained outside the United States to avoid or evade 

training or service in the armed forces in time or war or a period 

declared by the President to be a national emergency, except aliens

1 T he A ttorney G eneral subsequently approved these conclusions.

1 T he Im m igration and Nationality A ct, 66 Stat. 166 (1952) codified at Title 8, United 

States Code.

77-14 MEMORANDUM OPINION FOR THE

ATTORNEY GENERAL

34
who were at the time of such departure nonimmigrant aliens and 

who seek to reenter the United States as nonimmigrants. 8 U.S.C. 

§ 1182(a)(22).

Proclamation 4483, issued by the President on January 21, 1977, 

grants a pardon to everyone “who may have committed any offense 

between August 4, 1964 and March 28, 1973 in violation of the Military 

Selective Service Act.” 13 Weekly Comp. Pres. Doc. 90. The Proclamation does not on its face purport to pardon the “offense” of departing from or remaining outside the United States to avoid or evade 

military training or service in the Armed Forces and thereby to remove 

the sanction of exclusion from the United States.

Executive Order 11967, also issued by the President on January 21, 

1977, implements the pardon by, inter alia, instructing the Attorney 

General to seek dismissal of indictments for offenses covered by the 

pardon. Id. Section 3 of the order provides:

Any person who is or may be precluded from reentering the 

United States under 8 U.S.C. 1182(a)(22) or under other law, by 

reason of having committed or apparently committed any violation 

of the Military Selective Service Act shall be permitted as any 

other alien to reenter the United States.

The Executive order and the Proclamation together evince a clear 

intent to remove the exclusion imposed by 8 U.S.C. § 1182(a)(22). 

Because the Proclamation itself only mentions violations of the Military 

Selective Service Act, and the Executive order by its terms seems to 

lift the exclusion only where it would otherwise apply “by reason o f ’ 

an underlying violation of that Act, it would appear that the intent was 

to lift the exclusion only derivatively by removing a consequence of 

having violated the Military Selective Service Act. However, as explained below, 8 U.S.C. §1182(a)(22) was probably not intended to 

apply to any conduct that is not also unlawful under the Selective 

Service Act. The pardon therefore will have the same effect whether it 

operates derivatively or directly—Le., by pardoning the separate “offense” created by 8 U.S.C. § 1182(a)(22). See footnote 8, infra.

The present § 1182(a)(22) was first enacted in 1944 in an Act that had 

only one other section: the predecessor to the recently repealed 8 

U.S.C. § 1481(a)(10),3 which provided that any person who was a 

national of the United States would lose his nationality by departing 

from or remaining outside the jurisdiction of the United States in time 

of war or during a national emergency for the purpose of avoiding or 

evading training and service in the military forces of the United States. 

58 Stat. 746. It is evident that the two sections of the 1944 Act merely 

applied different sanctions for the same underlying conduct of leaving

J 8 U.S.C. § 1481(a)(10) was repealed by Pub. L. No. 94-412, 90 Stat. 1258 (1976).

35
or remaining outside the country to avoid military training or service.4 

Indeed, by virtue of the interaction between the two provisions, a U.S. 

national who left the country to avoid or evade training or service was 

expatriated and, as an alien, would then be excluded from entry into the 

United States. See, Jolley v. INS, 441 F. 2d 1245, 1255 n. 17 (5th Cir. 

1971).

The Attorney General described the purpose of the expatriation 

section of the bill in his letter to Senator Russell:

The files of this Department disclose that at the present time there 

are many citizens of the United States who have left this country 

for the purpose of escaping service in the armed forces. While such 

persons are liable to prosecution for violation of the Selective 

Service and Training A ct of 1940, if and when they return to this 

country, it would seem proper that in addition they should lose 

their United States citizenship. Persons who are unwilling to perform their duty to their country and abandon it during its time of 

need are much less worthy of citizenship than are persons who 

become expatriated on any of the existing grounds. S. Rep. No. 

1075, supra.

The Attorney General’s statement that persons subject to expatriation 

under the bill would be “liable to prosecution for violation of the 

Selective Service and Training Act of 1940” if and when they returned, 

indicates that the expatriation provision was to apply where the underlying conduct also violated that Act. His description of the sanction of 

expatriation as being “in addition” to criminal penalties for the conduct 

further supports this view.5

The view that the expatriation section of the 1944 Act applied only 

to conduct that gave rise to liability under the Selective Service and 

Training Act also is reflected in the Supreme Court’s opinion in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), which held that the 

expatriation provision was penal rather than regulatory in nature and 

was therefore unconstitutional because it automatically deprived a citizen of his nationality without the procedural protections required in a 

criminal trial. One of the factors the Court cited as ordinarily being 

useful in determining whether a sanction is penal or regulatory—and

*In a letter dated February 16, 1944, to Senator Russell, Chairman o f the Senate 

Com m ittee on Im migration, the A ttorney General stated:

I invite your attention to th e desirability o f enacting legislation w hich would

provide (1) for the expatriation o f citizens o f the United States w ho in time of w ar or

during a national emergency leave the United States or remain outside thereof for

the purpose o f evading service in- the armed forces o f the United States, and (2) for 

the exclusion from the United States o f aliens who leave this country fo r the abovementioned purpose. S. Rep. No. 1075, 78th Cong., 2d Sess., 2 (1944). [Emphasis 

added].

5 T he A ttorney G eneral’s description also indicates that the bill was intended to close a 

gap in the coverage o f existing criminal provisions by imposing a sanction upon those 

w ho had rem oved themselves beyond the criminal jurisdiction of the United States. See

90 Cong. Rec. 7628-29 (1944).

36
one that suggested that the expatriation provision was penal in nature— 

was “whether the behavior to which it applies is already a crime.” Id.

at 168.® Justice Brennan explicitly stated in his concurring opinion that 

it was obvious that the expatriation provision “does not reach any 

conduct not otherwise made criminal by the selective service laws.” Id.

at 191 n. 5. Because the expatriation section and the section that was 

the predecessor of the present 8 U.S.C. § 1182(a)(22) applied to the 

same underlying conduct, it follows that the latter provision similarly 

should be regarded as intended to apply only to conduct that also gives 

rise to criminal liability under the Military Selective Service Act.7 In 

our opinion, the President’s Proclamation of pardon of offenses arising 

under the Military Selective Service Act may properly be given the 

effect intended in Section 3 of Executive Order 11967 of lifting the 

exclusion from the United States which may result from the same 

conduct.

The leading case regarding the effect of a Presidential pardon is Ex

parte Garland, 71 U.S. 333 (1866). In 1865, Congress enacted a statute 

providing that no person could be permitted to practice in Federal 

court unless he took an oath asserting that he had never voluntarily 

borne arms against the United States or given aid or comfort to enemies 

of the United States. In holding that a Presidential pardon granted to a 

Confederate sympathizer for all offenses committed during the Rebellion had the effect of removing the bar imposed by the statute, the 

Court stated:

A pardon reaches both the punishment prescribed for the offense N 

and the guilt of the offender; and when the pardon is full, it 

releases the punishment and blots out of existence the guilt, so that

•T h e C ourt did note that the elements o f the “crim e” created by the expatriation 

provision and that created by the Selective Training and Service A ct w ere not identical, 

372 U.S. at 167 n. 21, but this observation appears to have been based on the conclusion 

that the Immigration and Nationality A ct contained an additional element not found in 

the other A ct—i.e„ departing from or remaining outside the country for the purposes 

declared to be unlawful. The C ourt did not suggest that expatriation would occur even if 

the underlying conduct did not constitute a violation of the Selective Training and 

Service Act.

Also, the expatriation section, as reenacted in the Immigration and Nationality Act, 

provided that failure to comply w ith any provision o f the compulsory service laws o f the 

United States raised the presumption that a citizen departed or remained outside the 

country for the purpose of evading or avoiding service. 8 U.S.C. § 1481(a)(10). This 

underscores the nexus to criminal conduct.

’ Section 11 of the Selective Training and Service A ct of 1940, 54 Stat. 894, which 

contained the criminal provisions o f that A ct, is in all material respects identical to the 

principal provision defining offenses and penalties under current law. See 50 U.S.C. App. 

§ 462(a). Thus, the present connection betw een the exclusion provision and the Selective 

Service A ct appears to be as direct as it was in 1944.

37
in the eye of the law the offender is as innocent as if he had never 

committed the offense. Id. at 380.®

See also, Knote v. United States, 95 U.S. 149, 153 (1877). The language 

in E x parte Garland is now generally believed to be too sweeping. E. 

Corwin, The President: Office and Powers, 1787-1957 (1957), at 166— 

67; W. H. Humbert, The Pardoning Power of the President (1941), at 

76-78. For example, the Court held in Carlesi v. New York, 233 U.S. 51 

(1914), that a Presidential pardon of a Federal offense did not prevent a 

State court from considering that offense for purposes of sentencing the 

defendant under a second offender statute. The Court was careful to 

note, however, that the New York statute did not purport to authorize 

additional punishment for the pardoned offense, but only prescribed 

penalties for the later offense taking into account the character of the 

offender, including his past conduct. Id. at 57. In fact, Ex parte Garland

may itself be viewed as a case in which the disability actually was 

imposed as a penalty rather than as a regulation of the practice of law. 

Humbert, supra, at 78 n. 95.® The President’s constitutional authority to 

pardon offenses carries with it the power to release all penalties and 

forfeitures that accrue from the offenses. Osborn v. United States, 91 

U.S. 474 (1875); 36 Op. A. G. 193 (1930). Thus, whether a pardon 

removes a particular disability depends on whether the statutory provision is thought to impose a penalty for an offense or merely to prescribe a qualification for a Government benefit. 31 Op. A. G. 225, 226- 

27 (1918). See also 39 Op. A. G. 132, 134-35 (1938); 36 Op. A. G. 193 

(1930); 22 Op. A. G. 36 (1898).

Many of the grounds for exclusion provided by 8 U.S.C. § 1182(a) 

could properly be regarded as establishing qualifications for entry, 

rather than punishment for past acts, and as such they would presumably be unaffected by a Presidential pardon. This, however, cannot be 

said of the ground for exclusion in 8 U.S.C. § 1182(a)(22). The companion provision for expatriation of a citizen who departed or remained 

outside the country to avoid or evade military training or service was 

specifically found to be penal rather than regulatory in character, in 

Kennedy v. Mendoza-Martinez, supra, after an exhaustive consideration 

of the language and legislative history of the 1944 Act and its predecessors. The evidence of a punitive intent in the legislative history and 

antecedents of the 1944 Act apply equally to the corollary provision for 

the exclusion of aliens now contained in 8 U.S.C. § 1182(a)(22). Similarly, the various factors the Court identified as suggesting that the sanc-

* T he four dissenters contended th at the A ct was merely intended to establish qualifications for the practice o f law before Federal courts. In their view, the pardon could 

relieve the beneficiary from the penalty the law inflicted for his offense, but not from 

m eeting appropriate tests o f fitness to engage in the practice o f a profession. 71 U.S. at 

396-97.

• T his interpretation o f E x parte Garland is supported by the C ourt’s alternative holding 

that the professional disqualification was intended by Congress as punishment for past 

acts and therefore was unconstitutional as ex post facto legislation. 71 U.S. at 376-380.

38
tion of expatriation was punitive on its face also apply to the sanction of 

exclusion of aliens who engage in the very same conduct. 372 U.S. at 

168-69. Exclusion from the United States certainly involves an affirmative restraint, and it is analogous to the devices of banishment and exile 

that “have throughout history been used as punishment.” Id. at 168 n. 

23. From the nature of the provision it seems evident that exclusion 

may be imposed only upon a finding of scienter, see, e.g., Riva v. 

Mitchell, 460 F. 2d 1121 (3d Cir. 1972); Jolley v. INS, 441 F. 2d 1245 

(5th Cir. 1971), and its operation promotes the traditional aims of 

punishment—retribution and deterrence. The other factors mentioned 

by the Court are also satisfied here.

Because it appears that Congress has imposed the sanction of exclusion as additional or alternative punishment for conduct that also violates the Military Selective Service Act, rather than as a regulatory 

measure to establish the qualifications of aliens who enter the United 

States, we agree with the conclusion of the INS that the President has 

the constitutional power to lift that exclusion as a consequence of his 

grant of a pardon for violations of the Military Selective Service A ct.10

II. Authority for Regarding an Expatriated Citizen as a Lawful 

Permanent Resident.

INS suggests that a United States citizen who voluntarily relinquished his citizenship can be regarded as an alien lawfully admitted for 

permanent residence. On its face, this seems to be a strained result, at 

least as it applies to a native-born citizen. The term “lawfully admitted 

for permanent residence” is defined under the Immigration and Nationality Act to mean “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, such status not having 

changed.” 8 U.S.C. § 1101(a)(20). A native-born citizen would never 

have been accorded the privilege of residing permanently in the United 

States “as an immigrant,” so it is difficult to see how he could be 

thought to revert to the status of permanent resident alien by renouncing his citizenship. A naturalized citizen presumably has been accorded 

the privilege of residing permanently in the United States as an immi10 In our view, the clear punitive purpose of 8 U.S.C. § 1182(a)(22) might well support 

a conclusion that the section itself defines an offense that may be pardoned by the 

President, w ithout reference to parallel provisions in the Military Selective Service Act. 

In Kennedy v. Mendoza-Martinez, the C ourt stated that “Congress has plainly employed 

the sanction o f deprivation of nationality as a punishment—/o r the offense o f leaving or

remaining outside the country to evade military service—w ithout affording the procedural 

safeguards guaranteed by the Fifth and Sixth Amendments.” 372 U.S. 165-66 [emphasis 

added]. Long before the Supreme C ourt’s decision in Kennedy v. Mendoza-Martinez,

A cting A ttorney General John W. Davis advised the Secretary o f the N avy that an 

earlier version of the expatriation statute created an ofTense and that the disabilities 

imposed w ere therefore lifted by an unconditional pardon. 31 Op. A. G. 225, 231-32 

(1918). T he underlying “offense” o f departing from or remaining outside the United 

States to avoid military service under 8 U.S.C. § 1182(a)(22) is the same, and it could 

therefore be argued that the penalty of exclusion can be lifted by a pardon intended to 

have this result. But in view of the conclusion reached in the text, w e need not decide 

here w hether 8 U.S.C. § 1182(a)(22) itself states a pardonable offense.

39
grant at some point prior to his naturalization. But, by the terms of 8 

U.S.C. § 1101(a)(20), an alien permitted to reside permanently in the 

United States may possess that immigrant status only as long as the 

status does not change. When a permanent resident alien becomes a 

naturalized citizen, he loses his status as an alien altogether. Thus, the 

language of 8 U.S.C. § 1101 (a)(20) does not appear to contemplate that 

the initial permanent resident status can be resurrected once it has been 

lost.

As the INS memorandum points out, the Board of Immigration 

Appeals held in Matter of Vielma-Ortiz, 11 I&N Dec. 414 (1965), that a 

naturalized citizen who had been admitted for permanent residence 

prior to naturalization reverted to the status of permanent resident alien 

when he automatically lost his citizenship by voting in a foreign election.11 The Board specifically noted that the expatriating act of voting 

in a Mexican election “had nothing to do with the continuance of the 

status as a lawful permanent resident of the United States,” Id. at 416, 

presumably meaning that the individual’s act of voting in the particular 

case did not manifest an intention to abandon his actual residence in the 

United States.12

It is evident that the Board interpreted the phrase “such status not 

having changed” in 8 U.S.C. § 1101(a)(20) to mean only that the alien 

must not have abandoned his actual residency in the United States. We 

do not believe that this construction is appropriate in light of subsequent developments. In Gooch v. Clark, 433 F. 2d 74, 79 (9th Cir. 

1970), the court held that “the definition [in 8 U.S.C. § 1101 (a)(20)] 

refers not to the actuality of one’s residence but to one’s status under 

the immigration laws” [emphasis in original]. The status involved is that 

of an alien lawfully admitted for permanent residence. A person ceases 

to be an alien altogether when he becomes a naturalized citizen, and his 

status as an alien therefore does not remain unchanged as required by 8 

U.S.C. § 1101(a)(20).13

It also should be noted that the Board’s decision in Matter o f VielmaOrtiz preceded the Supreme Court’s decision in Afroyim v. Rusk, 387 

U.S. 253 (1967), which held that citizenship may be forfeited only

11 A brief passage in Justice Brennan's concurring opinion in Kennedy v. MendozaM artinez lends some support to the result in Vielma-Ortiz. He observed that the G overnment could argue that a citizen who fled the country to avoid military service, “although 

expatriated, is a resident alien subject to com pulsory m ilitary service.” 372 U.S. at 195 n. 

7.

T he evidence established that the appellant obtained a voter registration card and 

voted in a Mexican election primarily to further his business dealings there and that he 

intended to return to his family in the United States on each occasion that he went to 

Mexico.

’’ T he Suprem e C ourt later stated in Saxbe v. Bustos, 419 U.S. 65, 72 (1975), that it 

“ read the A ct as did the Ninth Circuit in the Gooch case to mean that the change in status 

w hich C ongress had in mind was a change from an immigrant lawfully admitted for 

perm anent residence to the status of a nonimmigrant pursuant to 8 U.S.C. § 1257” [emphasis in original]. This passage only speaks o f tw o different statutes that an alien may 

occupy. It does not suggest that a person m ight come w ithin 8 U.S.C. § 1101(a)(20) if he 

w as not even an alien for a period o f time.

40
though a voluntary act of relinquishment. The decision in Vielma-Ortiz

may have stemmed from a desire to soften the harsh impact of automatic expatriation for voting in a foreign election. The decision in Afroyim

v. Rusk removes this pressure for a liberal construction of the statute; 

the requirement that a person who has renounced his citizenship must 

assume the position of an alien and apply anew for an immigrant visa or 

permanent resident status is now but a necessary consequence of a 

voluntary act. Also, as a practical matter, it would probably be rare 

that a person who voluntarily renounced his citizenship,14 with all the 

severing of ties that implies, would nevertheless be thought to have 

retained a permanent residence in the United States to which he might 

now be returning from a “temporary” visit abroad. See Part III, infra.

Therefore, little would probably be gained by regarding an expatriated 

citizen as an alien lawfully admitted for permanent resident.

For the foregoing reasons, it is our opinion that the result in VielmaOrtiz should not be followed with respect to persons covered by the 

pardon who have renounced their citizenship.15

III. Standard for Determining Whether an Alien is Returning from 

a Temporary Visit Abroad.

We agree with the position of INS that the determination whether an 

alien seeking to enter the United States is “an immigrant, lawfully 

admitted for permanent residence, who is returning from a temporary 

visit aboard” under 8 U.S.C. § 1101(a)(27)(A) should in general be 

determined on a case-by-case basis. Judicial and administrative decisions 

arising under this section have generally looked to the facts of the

“ The IN S memorandum, at pp. 10-11, notes that those w ho have been effectively 

expatriated either applied for and obtained naturalization in a foreign country or form ally 

renounced their citizenship. 8 U.S.C. §§ 1481(a) (1) and (6). A formal renunciation will 

usually be unambiguous in regard to subjective intent to relinquish citizenship. See, e.g.,

Jolley v. IN S, 441 F. 2d 1245 (5th Cir. 1971). But it appears that even an application for 

and obtaining o f naturalization in a foreign country or taking an oath o f allegiance to a 

foreign country will not be regarded as an effective act of expatriation unless it is 

accompanied by an intent to abandon United States citizenship. United States v. Matheson,

532 F. 2d 808 (2d Cir. 1976); King v. Rogers, 463 F. 2d 1188 (9th Cir. 1972).

“ Section 3 of Executive O rder 11967 provides that any person precluded from reentering the United States under 8 U.S.C. § 1182(a)(22) shall be perm itted “as any other alien” 

to reenter the United States. A n expatriate w ho left the country to avoid military service 

or training is barred from reentry under this section. H ow ever, because such an individual could not be regarded as a returning resident alien, the provision for him to reenter “as 

any other alien” should be construed to mean that he must reenter in the same m anner as 

an alien w ho no longer has the status of an alien lawfully adm itted for perm anent 

residence. H e must therefore satisfy all entry requirements, including applicable quota 

limitations.

41
particular case to determine whether a given absence was temporary.16 

It would be a departure from the usual approach in this area to follow 

Option A contained in the draft statement prepared by INS for the 

Attorney General. Under Option A, any alien covered by the pardon 

who had been lawfully admitted for permanent residence would automatically be regarded to be returning from a temporary visit abroad 

and therefore eligible for a waiver of documentation requirements 

under 8 U.S.C. § 1181(b).

Option B proposed by INS would require a case-by-case determination for each alien, and it further states that it “is likely that most aliens 

in this category will be precluded by the length and circumstances of 

their absence from qualifying as returning permanent residents.” This is 

apparently based on INS’ conclusion (at p. 12 of Commissioner Chapman’s memorandum) that the rule established by the cases is that 

lengthy absence without an explanation amounting to a legal excuse 

results in loss of returning resident status. We believe INS takes too 

narrow a view of the concept of a “temporary visit abroad,” especially 

in placing determinative emphasis on the duration of the visit and 

apparently attaching little significance to the intent of the alien.17

The cases considering the question of what constitutes a temporary 

visit abroad are not entirely consistent; the most important factor that 

emerges from the cases, however, is whether the alien had a continuing 

intent to return to the United States—animus revertendi. See, Matter of

Kane, I&N, Interim Dec. #2371 (April 1, 1975), at 6-8.18 As stated in 

the most frequently cited case in this area, “the intention of the departing immigrant must be to return within a period relatively short, fixed

16 8 U.S.C. § 1181(b) provides th at the A ttorney G eneral may waive the documentary 

requirem ent for returning resident imm igrants “in such cases o r in such classes o f cases 

and under such conditions as m ay be by regulations prescribed.” The reference to 

“classes o f cases" m ight suggest that a case-by-case determination is not absolutely 

necessary. But the statute refers to classes o f “ returning resident immigrants"; in order to 

be included in such a class in the first place, an alien m ust be returning from a tem porary 

visit abroad. See 8 U.S.C. § 1101(a)(27)(A). A n individualized determination w ould seem 

to be required on this point.

17 A t one time, regulations implementing the waiver o f the docum entary requirement in 

8 U.S.C. § 1181(b) provided that a w aiver w ould be considered only if the tem porary 

visit abroad was for 1 year or less. See, Tejeda v. INS, 346 F. 2d 389, 391 (9th Cir. 1965). 

T h e regulation w as amended on M ay 7, 1969, 29 Fed. Reg. 6002, and it no longer 

contains the 1-year limitation. See 8 C F R 242.7a. W aiver is now perm itted for tem porary 

visits o f longer duration.

18 In this regard, it may be useful to consider a tem porary visit abroad as being in 

contradistinction to a permanent visit. Cf. 8 U.S.C. § 1101(a)(31). Viewed in this light, 

reference to a tem porary visit may be only a label for the m ore probing question of 

w hether the alien has retained his essential ties to the United States or abandoned them. 

M any perm anent resident aliens w ho left the country to avoid m ilitary service no doubt 

retained closer personal ties to the U nited States than to the country to which they fled.

42
by some early event.” United States ex rel. Lesto v. Day, 21 F. 2d 307, 

308-09 (2d Cir. 1927).19

Other cases are to the same effect.20 For example, in Santos v. INS,

421 F. 2d 1303 (9th Cir. 1970), the court held that a permanent resident 

alien who left Guam after 12 years to seek other employment was not 

returning from a temporary visit abroad when he sought entry in San 

Francisco some 5 years later. The court noted the Special Inquiry 

Officer’s finding that the alien had left with no definite intention either 

of staying away permanently or of returning, but rather with a purpose 

to let future events run their course. Thus, there was no evidence of 

animus revertendi. Similarly, in United States ex rel. Alther v. McCandless, 46 F. 2d 288, 290-91 (3d Cir. 1931), the court held that the mere 

absence of an intent to remain abroad permanently was not sufficient if 

there was no evidence of an affirmative intent to return to the United 

States. It is important to note, however, that the court considered the 

alien’s intent in determining whether his visit abroad was temporary 

even though he had been out of the country for more than 8 years. See

also, Gamero v. INS, 367 F. 2d 123 (9th Cir. 1966) (alien away 17 years 

held to have abandoned any intent he may once have had to return to 

the United States); United States ex rel. Polymeris v. Trudell, 49 F. 2d 

730, 732 (2d Cir. 1931) (absence of 7 years); Barrese v. Ryan, 203 F. 

Supp. 880, 888-89 (D. Conn. 1962) (intent of alien controls where it can 

be ascertained); Matter of Montero, 14 I&N Dec. 399, 400 (1973). These 

cases at least establish that the extent of the visit is not controlling 

where the intent of the alien may reasonably be questioned. United

States ex rel Polymeris v. Trudell, supra, 49 F. 2d at 732; Matter of

Kane, supra, at 6-7.

It is true that courts have cited factors in addition to the intent of the 

alien in determining whether a given visit was temporary. Others considered have included the duration of the visit and whether the alien 

has a residence, family ties, property holdings, employment, or business 

in the United States. See, e.g., Alvarez v. District Director, INS, 539 F. 

2d 1220, 1224-25 (9th Cir. 1976); Santos v. INS, supra; United States ex

rel. Lesto v. Day, supra; United States ex rel. Alther v. McCandless, supra;

Matter o f Castro, 14 I&N Dec. 412, 494 (1973). But it is not apparent

T he court also held that mere retention o f domicile is insufficient, standing alone, to 

make a visit temporary. 21 F. 2d at 308. This conclusion seems sound, because a person 

retains his prior domicile until he affirmatively establishes a new one, even if he has no 

intention o f returning to the place o f domicile. Restatement (Second) o f Conflict o f Law s 

§ 19.

" We also find no requirement articulated in the cases that when an alien’s absence is 

protracted he must have an explanation amounting to a “legal excuse.” R ather, when a 

stay is protracted, the courts appear to look for an explanation that w ould permit a 

conclusion that the alien had the intent to return and that his visit was therefore 

“tem porary” despite its duration. The State D epartm ent regulation providing that a 

protracted visit is not temporary, unless it was caused by reasons beyond the alien’s 

control and for which he was not responsible, does not control here. The applicable INS 

regulation only requires a “tem porary absence,” w ithout the additional limitations contained in the State D epartm ent regulation. See 8 C FR 242.7a.

43
whether these factors are cited merely as objective manifestations of the 

alien’s animus revertendi (or lack thereof), or whether they are meant to 

have independent legal significance. For the most part, we think they 

are primarily useful as indicia of the alien’s intent. See, Matter o f Kane,

supra, at 7-8. Of these additional factors, we are inclined to attach 

substantive significance solely to the duration of the stay abroad, if only 

because the word temporary connotes an element of duration. Cf,

Gamero v. INS, supra, 367 F. 2d at 127.21 The view that there are 

ultimate durational limits on a “temporary visit” is evident in the 

passage from United States ex rel. Lesto v. Day, quoted earlier, that “the 

intention of the departing immigrant must be to return within a period 

relatively short, fixed by some early event.” 21 F. 2d at 308-09.

It seems likely that many permanent resident aliens who left the 

country to avoid military service did so with the specific intent of 

staying away “for the duration” and returning to the United States 

when it was possible to do so without incurring criminal liability. In 

our view, the formulation in United States ex rel. Lesto v. Day is 

sufficiently flexible to permit the Department to regard the “duration” 

as a “period relatively short” under the special circumstances present 

here, with that period being fixed by the “early event” of a Presidential 

pardon, whenever it might come. C f, Gamero v. INS, supra, 367 F. 2d 

at 126. This approach is particularly justified here because the principal 

deterrent to the aliens’ return—and therefore the principal reason why 

their visits abroad became protracted—was the fact that they had 

committed offenses that could give rise to criminal liability.22 The 

pardon excuses these very offenses. It is consistent with the purposes of 

the pardon to insure that its beneficiaries are not penalized by attaching 

undue significance to the duration of the visit, which resulted from the 

commission of the pardoned offenses.

This is not to say that every pardoned alien who was once lawfully 

admitted for permanent residence must automatically be regarded as a 

permanent resident returning from a temporary visit abroad. A factual 

question may still exist in some cases as to whether the alien possessed 

the requisite animus revertendi during his absence. Because of the 

pardon, the Attorney General might wish to consider instructing INS 

to adopt a liberal policy in this regard or to make clear that a protracted stay due to the possibility of criminal liability will be regarded as a 

temporary visit abroad if the alien intended to return when he could do 

so without incurring criminal liability. It might even be possible, as a

21 Thus, if an alien left the country with a fixed intention to return to the United States 

after 20 years, the conceded presence o f animus revertendi for that period would probably 

not alone permit the alien’s visit abroad to be regarded as "tem porary.” But that will not 

be the situation w ith m any permanent resident aliens w ho will benefit from the pardon. 

Cf., Matter o f Castro, 14 I&N Dec. 492, 494 (1973).

M T hus, aliens w ho remained out o f the country because of their possible criminal 

liability have an explanation for their protracted stay that is consistent with an intent to 

return to the United States as soon as they could. C f, United States v. Trudell, 49 F. 2d at 

732; Matter o f Kane, supra, at 7. See note 18, supra.

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procedural matter, to adopt a presumption that a permanent resident 

possessed the intent to return during his absence, although this would 

to some extent be in derogation of the case-by-case approach normally 

followed.

J o h n M . H a r m o n

Acting Assistant Attorney General

Office o f Legal Counsel

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