Interim Decision *3079 

MATTER OF HUANG 

In Exclusion Proceedings 

A-37289542 

A-37289543 

A-37289544 

Decided by Board September 28, 1988 

(1) Where an applicant for admission to the United States has a colorable claim to 

returning resident status, the burden is on the Immigration and Naturalization 

Service to show by clear, unequivocal, and convincing- evidence that the applicant 

should be deprived of his or her lawful permanent resident status. 

(2) An alien acquires lawful permanent resident status at the time of his initial admission to the United States as a lawful permanent resident, as at that point he 

attains "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," and is thus an alien "lawfully admitted for permanent residence" pursuant to section 101(aX2D) of the Act, 8 U.S.C. § 1101(aX20) (1982). 

(3) For purposes of determining whether the applicant has abandoned her lawful 

permanent resident status, an applicant's absence from the United States due to 

her husband's having a contract to work and study at a Japanese university 

cannot be said to be a temporary visit abroad fixed by some early event, where 

the record does not show a clear demarcation as to when her husband's relationship with the university would end. 

EXCLUDABLE: Act of 1952—Sec. 212(aX20) [8 U.S.C. § 1182(aX20)]—No valid immigrant visa (all applicants) 

ON BEHALF OF APPLICANTS: ON BEHALF OF SERVICE: 

Bernard S. Karmiol, Esquire Gregory E. Fehlings 

Maio & Vidor General Attorney 

9744 Wilshire Boulevard, Suite 402 

Beverly Hills, California 90212 

BY: Milhollan, Chairman; Dunne and Morris, Board Members. Concurring and 

Dissenting Opinion: Heilman and Vacca, Board Members. 

In a decision dated May 13, 1986, an immigration judge found 

the applicants excludable under section 212(a)(20) of the Immigra- 
Interim Decision #3079 

don and Nationality Act, 8 U.S.C. § 1182(a)(20) (1982), as aliens 

with no valid immigrant visas, and oxdered them excluded and deported from the United States. The applicants have appealed from 

that decision. The appeal will be dismissed. The request for oral argument before the Board is denied. 

The applicants are natives and citizens of Taiwan and include a 

female adult who is 38 years old, and her two minor children, ages 

8 and 11.1They were initially admitted to the United States as 

lawful permanent residents on June 5, 1982. The applicant's husband, the father of the children in question, was admitted as a 

lawful permanent resident a week earlier. The record reflects that 

the applicant's husband, after receiving his Alien Registration Receipt Card (Form 1-551), returned to Japan to continue studying 

and working at a university's medical school as a medical doctor in 

the field of neurosurgery. Both the applicant and the Immigration 

and Naturalization Service stipulated at the exclusion hearing that 

the applicant's husband had entered into a contract with the medical school for this purpose in May 1081, and that the contract was 

for a period of 5 years. The applicant and the two children remained in Los Angeles, California, for approximately 3 to 4 weeks 

at the home of her husband's sister, a. United States citizen. Thereafter, she and the children returned to Japan. The applicant and 

her two children last sought to reenter the United States on May 

10, 1986, at which time they were placed in exclusion proceedings. 

In a sworn statement dated that same day, the applicant reported 

that she intended for her children to go to school in the United 

States and to live in this country forever, while she planned to 

return to Japan in 2 months. 

The applicant testified at the exclusion hearing that her husband 

had been a medical doctor in Taiwan and had entered into the contract with the medical school in Japan, as they thought that it 

would take a great deal of time before they would be granted visas 

to enter the United States as immigrants on the basis of a visa petition filed by her husband's sister. She also related that she and 

her two children had returned to the United States every year 

since 1982 for 3 or 4 weeks in March or April in order to maintain 

her lawful permanent resident status. According to the applicant, 

she and the children would stay with. her husband's sister. She reported that her children attended a Chinese school in Japan, but 

1 In this decision, references to the applicant shall pertain solely to the female 

adult applicant, as the excludability of the children is dependent on the excludability of the female adult applicant. Abandonment of lawful permanent resident status 

of a parent is imputed to a minor child who is subject to the parent's custody and 

control. Matter of Winkens. 16 MN Dec. 451 (BIA 1975). 

7M1 
Interim Decision #3079 

that they had also attended a preschool in the United States for a 

short period in 1982 and had also attended school in this country 

for a short period in 1984. According to the applicant, her husband 

had not returned to the United States since 1982 and had never 

worked in the United States. She also related that she had worked 

at the Taiwan consulate in Japan for 3 years, until February 1985, 

and that they had sold their property in Japan in October 1985. 

At the exclusion hearing, the applicant reported that she and 

her husband had invested in a condominium in Long Beach, California, through a partnership or joint venture, beginning in 1980, 

and had paid investment taxes to the United States. She also related that she and her husband had purchased a house in Los Angeles, California, in 1985 and paid property taxes on the house. She 

additionally noted that she had a bankaccount in the United 

States. 

Additional documents have been submitted by the applicants on 

appeal, including a June 18, 1986, letter from the chairman of the 

department of neurosurgery at Osaka University Medical School. 

In the letter, the chairman related that the applicant's husband 

had come to Japan on May 23, 1981, and since June 1, 1981, had 

been working as a research fellow in the department of neurosur 

gery. According to the chairman, he had been working as a staff 

neurosurgeon at another hospital since July 1, 1985, and had 

passed the Japanese National Board of Medical License in May 

1982. An additional certificate from the dean of the medical school 

certifies that the applicant's husband had been a research student 

at the school's department of neurological surgery from July 1, 

1983, to the present time. 

A letter from the applicant's husband, dated June 12, 1987, has 

also been submitted. In the letter, her husband reported that he 

had been a neurological surgeon in Taiwan until 6 years earlier, 

when he decided to research and study more in that field and 

therefore entered a doctorate program at a medical school in 

Japan. According to the applicant's husband, he still needed to 

complete his dissertation and might have his doctorate degree in 

1987. He indicated that he desired to stay in the United States 

after he passed an examination for neurological specialists the following year. Noting that he and his wife had a house in California 

as well as, a bank account, he stated that they intended to stay and 

live in the United States even though they had been unable to do 

so for the past 5 years. 

The immigration judge concluded that the applicant and her two 

children were excludable under section 212(a)(20) of the Act as 

aliens not in possession of valid immigrant visas, as they had never 
Interim Decision #3079 

established their lawful permanent resident status. He concluded 

that even if they had, they had abandoned that status. He determined that they had never established a residence in the United 

States, and that their intent regarding their residence or domicile 

was irrelevant, noting that the Act defined "residence" as the 

actual dwelling place in fact, without regard to intent. 

On appeal, the applicant contends that her and her family's 

intent is relevant to the question of whether their lawful permanent resident status has been abandoned. She asserts that she and 

her children never abandoned that status, as they had always intended to settle in the United States following the completion of 

her husband's doctoral program in Japan, which was now expected 

in 1988. She points out that when her husband began his training 

in 1981, they were unaware that his priority date for coming to the 

United States would be reached in early 1982. Noting that her family's Japanese residency documents submitted at the exclusion 

hearing show that her family was residing only in a temporary 

status which had to be renewed yearly, the applicant asserts that 

their purchase of investment property in 1980 and a house in 1985, 

as well as their bankaccount and payment of taxes in the United 

States, albu eho w her intent. 

The Service contends on appeal that the applicants have abandoned their lawful permanent resident status. 2In doing so, it 

points out that the applicant's husband has never returned to the 

United States, that the applicant herself has worked for years in 

Japan, that the applicant's children attend school in Japan, and 

that they own a home in Japan and have never had a residence in 

the United States. It further notes that the applicant's visits to the 

United States have been brief, and only for the purpose of giving 

the appearance of maintaining a residence in this country. 

Section 212(a)(20) of the Act requires the exclusion of immigrants 

seeking admission to the United States if they do not possess a 

valid immigrant visa, re-entry permit, or other valid entry document. Section 211(b) of the Act, 8 U.S.C. § 1181(b) (1982), however, 

permits the Attorney General to waive those documentary requirements and, hence, the section 212(a)(20) ground of excludability, for 

any alien who is a returning resident immigrant. 

A returning resident is "an immigrant, lawfully admitted for 

permanent residence, who is returning from a temporary visit 

2 The applicant lies made a motion before the Board to expunge and strike the 

Service's appellate brief from the record, as it was untimely , filed. Although the 

brief was untimely, the Board concludes there exists sufficient cause for allowing it 

to remain in the record and be considered. 

752 
Interim Decision #3079 

abroad." Section 101(a)(27XA) of the Act, 8 U.S.C. § 1101(aX27XA) 

(1982). The phrase "lawfully admitted for permanent residence" 

means "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." Section 101(a)(20) of the Act. Under the applicable regulation, a returning resident may present an Alien Registration Receipt Card in lieu of an immigrant visa if returning to an tuirelinquished lawful permanent residence in the United States after a 

temporary absence abroad not exceeding 1 year. 8 C.F.R. § 211.1(b) 

(1988). Thus, in order to qualify as a returning resident alien, an 

alien must have acquired lawful permanent resident status in accordance with our laws, must have retained that status from the 

time that he acquired it, and must be returning to an "unrelinquished lawful permanent residence" after a "temporary visit 

abroad." Santos v. United States INS, 421 F.2d 1303, 1305 (9th Cir. 

1970); sections 101(a)(20) and (27)(A) of the Act; 8 C.F.R. § 211.1(b) 

(1988). 

The term "temporary" is not subject to inflexible definition and 

varies in application depending upon the facts and circumstances 

of each particular ease. See Gamero v. INS, 867 F.2d 122 (9th Cir. 

1966). What is a temporary visit cannot be defined in terms of 

elapsed time alone. United States ex rel. Polymeris v. Trudell, 49 

F.2d 730 (2d Cir. 1931), aff'd, 284 U.S. 279 (1932). Rather, the intention of the alien, when it can be ascertained, will control. Id.; 

Matter of Kane, 15 I&N Dec. 258 (lIlA 1975); see also United States 

ex rel. Alther v. McCandless, 46 F.2d 288 (3d Cir. 1931). We have in 

the past ascertained an alien's intention by examining the location 

of his family ties, property holdings, and job, and whether he intended to return to the United States as a place of employment or 

business or as an actual home. Matter of Muller, 16 I&N Dee. 637 

(BIA 1978); Matter of Quijencio, 15 I&N Dee. 95 (BIA 1974). We 

have also considered the applicant's purpose in departing from the 

United States, whether the visit abroad can be expected to terminate within a relatively short period of time, and whether the termination date can be fixed by some early event. Matter of Kane, 

supra. 

We emphasize that "unrelinquished lawful permanent residence," as used in 8 C.F.R. § 211.1(b) (1988), can have reference to 

something less than a permanent dwelling place in the United 

States. See Saxbe v. Bustos, 419 U.S. 65 (1074); Matter of Kane, 

supra. Consequently, the applicant's lack of an actual dwelling 

place in this country is not, in and of itself, determinative in ascerWining whether he is returning from a temporary absence abroad. 
Interim Decision #3079 

See Matter of Kane, supra; see also Matter of Guiot, 14 I&N Dec. 

393 (D.D. 1973). 

It is important to note that the Service has the burden in this 

case of proving that the applicant is not eligible for admission as a 

returning permanent resident alien. While the burden of proving 

admissibility is generally on the applicant in exclusion proceedings, 

see section 291 of the Act, 8 U.S.C. § 1361 (1982), where an applicant for admission has a colorable claim to returning resident 

status, the burden is on the Service to show that the applicant 

should be deprived of his or her status as a lawful permanent resident. Matter of Salazar, 17. I&N Dec. 167 (BIA 1979); Matter of 

Kane, supra. 

This Board has not previously articulated what burden of proof 

the Service must meet in order to establish that an applicant's 

lawful permanent resident status has changed. We now conclude 

that the Service's burden is to show that the applicant's status has 

changed by clear, unequivocal, and convincing evidence. In Woodby 

v. INS, 385 U.S. 276 (1966), the Supreme Court observed that drastic deprivation may follow if a resident of the United States is compelled to forsake all bonds formed in this country and go to a foreign land where the resident often has no current ties. The Court 

therefore held in that case that in deportation hearings the Service 

must establish facts supporting deportability by clear, unequivocal, 

and convincing evidence. An applicant for admission to this country who has a colorable claim to returning resident status similarly 

may often have much at stake in retaining his or her lawful permanent resident status. 

For purposes of the constitutional right to due process, a returning lawful permanent resident's status is assimilated to that of an 

alien continuously residing and physically present in the United 

States. Kwong Hai Chew v. Colding, 244 U.S. 590 (1953). Although 

these differently situated groups of aliens do not have a right to 

identical treatment, and a returning lawful permanent resident's 

admissibility may be properly determined in an exclusion hearing, 

Landon v. Plasencia, 459 U.S. 21 (1982), the returning lawful permanent resident should be given reasonable notice of the charges 

against her and afforded a fair hearing. Kwong Hai Chew v. Colding, supra. Given what the alien may have at stake, it has also 

been held, as noted above, that a returning lawful permanent resident may only be deprived of that status in proceedings in which 

the Service bears the burden of proof. The Board similarly concludes that the deprivation that may follow also requires that the 

Service establish that such status has changed by clear, unequivocal, and convincing evidence. 
Interim Decision 4t3079 

In the case at hand, the immigration judge concluded that the 

applicants had never established a lawful permanent resident 

status in the United States. This conclusion was incorrect. The applicants acquired. lawful permanent resident status in the United 

States at the time of their June 5, 1982, admission to this country. 

See section 101(aX20) of the Act. See generally 2 C. Gordon and H. 

Rosenfield, Immigration Law and Procedure § 6.17 (rev. ed. 1986). 

At that point, the applicants attained "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," and were thus aliens "lawfully admitted for permanent residence" pursuant to section 101(a)(20) of the Act. 

The immigration judge also found that the applicants, if they 

ever had attained lawful permanent resident status, had abandoned that status. The Board agrees. However, the Board would 

point out that the immigration judge was incorrect in concluding 

that the applicant's intent was irrelevant in determining whether 

she had abandoned that status. Although section 101(aX33) of the 

Act defines "residence" as the principal, actual dwelling place in 

fact, without regard to intent, we are concerned with whether the 

applicant abandoned her lawful permanent resident status in this 

country, and not whether she abandoned a particular dwelling 

place. See Matter of Kane, supra. As noted above, an "unrelmquished lawful permanent residence" as used in 8 C.F.R. § 211.1(b) 

(1988) can refer to something less than a permanent dwelling place 

in the United States. See Saxbe v. Bustos, supra. The definition of 

"residence" in section 101(a)(83) of the Act, which would preclude 

consideration of the alien's "intent" in proceeding or remaining 

abroad, is inapplicable in determining whether an alien has abandoned her lawful permanent resident status. Matter of Guiot, 

supra. Nevertheless, the Board concludes that the Service has met 

its burden of proving by clear, unequivocal, and convincing evidence that the applicants in this case abandoned their lawful permanent resident status. 

While the applicant's professed intent was to return to the 

United States, her actions have not supported that intent. An 

alien's desire to retain her status, without more, is not sufficient. 

Matter of Kane, supra. The length of the applicant's absence from 

the United States is a significant factor in showing her intent to 

abandon her lawful permanent resident status. Except for brief 3-

to 4-week visits each year, the applicant and her children had been 

absent from the United States for approximately 4 years at the 

time of their last attempted entry in May 1986. During these brief 

visits, the applicant and her children resided with the sister of the 
Interim Decision #3079 

applicant's husband. Although the applicant and her husband have 

owned a house in Los Angeles, California, since 1985, they have 

never maintained a residence in the United States since being 

granted lawful permanent resident status in 1982. Since being 

granted that status, the applicant and her children have been 

living in Japan. The applicant's children have received their 

schooling in Japan and have reportedly only gone to school in this 

country for brief periods in 1982 and 1984 while visiting the sister 

of the applicant's husband. Additionally, the applicant and her husband owned a home in Japan until 1985. 

Moreover, the applicant was employed in Japan for 3 years from 

1982 to 1985. Her husband has studied and worked as a doctor in 

the field of neurosurgery at a university in Japan since June 1981 

and, since returning to Japan in 1982, has never returned to the 

United States. The applicant asserts on appeal that her husband 

was required to remain in Japan, thus requiring that she and their 

children do the same, because her husband had entered into a 5-

year contract in May 1981 to study and work at the university 

before they were notified that they could come to the United States 

as immigrants. As noted above, an extended period of absence from 

the United States, in appropriate circumstances, can be viewed as a 

temporary visit abroad if the end of the period of absence can be 

fixed by some early event. In the case at hand, the applicant 

argues that the period of absence was fixed by her husband's completion of his studies and work in the field of neurosurgery by attaining his doctorate degree at the university in question. However, 

the Board concludes that this does not provide a sufficiently definite point at which the applicant would return to the United 

States. hi this regard, the Board would point out that the applicant 

initially testified that the time of her family's return was provided 

by the husband's 5-year contract with the university, which would 

have ended in June 1986. However, evidence submitted by the applicant, including a June 1987 letter from her husband, and statements made on appeal indicate that her husband did not plan on 

finishing his doctoral program and medical examinations until 

some time in 1988. In all, the record has not shown a clear demarcation as to when her husband's relationship with the university 

would end and she and her family could return to the United 

States. 

The Board acknowledges that the applicant has some ties to the 

United States, including a sister-in-law living in California, invest 

ment property and a house in California, payment of investment 

and property taxes, and a bank account reportedly maintained 

somewhere in the United States. However, given that the appli7Ag 
Interim Decision #3079 

cants have never maintained a home or lived in the United States 

except for brief visits with the applicant's sister-in-law, these ties to 

the United States are minimal. Taking into account that the applicant has had extended absences from the United States, having 

lived and worked in Japan with her family for many years, the 

Board concludes that the status of the applicants as lawful permanent residents changed, that their absences were not temporary in 

nature, and that they are therefore not entitled to admission to the 

United States as returning permanent residents. The Service has 

met its burden of showing that they were excludable under section 

212(aX20) of the Act Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

Concurring in Part and Dissenting in Part: Michael J. Heilman. 

Board Member 

I respectfully concur in part and dissent in part. 

In this decision, the majority rejects the immigration judge's 

finding that the applicants had failed to establish a permanent residence in the United States in 1982, when they were initially admitted as lawful permanent residents. Because the majority decision mischaracterizes the immigration judge's actual finding, the 

majority engages in a rather tangential analysis of section 

101(a)(27) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1101(a)(27) (1982). I do not join in that portion of the majority decision, but do agree that the respondents should not be considered 

returning lawful permanent residents. 

In my estimation, the immigration judge clearly found that the 

respondents had never established a permanent residence in the 

United States. The immigration judge stated that it was "obvious 

from this record" that the applicants "never actually resided in the 

United States, that they have never maintained a residence in this 

country." This finding is repeated twice more in the decision in 

similar terms: "I am satisfied that they did. not establish a residence in this country...." "There is no evidence in this record to 

indicate or to suggest that any member of this family ever established residence in the United States ...." 

The majority focuses upon what is obviously an unintentional 

use of the word "status," in one sentence of the immigration 

judge's decision, where the word "residence" is certainly meant. 

The immigration judge stated: "To the contrary, I find that the applicants never established permanent status in the United States 

and that even if they did establish such residence that they have 
Interim Decision #3079 

long since abandoned that status." (Emphasis added.) I am completely satisfied from the immigration judge's decision that he was 

quite aware of the distinction to be made between being admitted 

to the "status" of a lawful permanent resident, as the applicants 

were in 1982, and the actual acquisition. of a permanent "residence" in the United States. 

It is because of the mischaracterization of the immigration 

judge's decision that the majority rejects his finding that the respondents never established a permanent residence in the United 

States. This finding appears to me to be eminently justified and to 

provide the primary basis for denying the applicants admission 

under the terms of section 101(a)(27) of the Act, which provides for 

the admission of lawful permanent residents following a "temporary visit abroad." 

It was recognized in Matter of Kane, 15 I&N Dec. 258, 261 (BIA 

1975), that an alien who had been "lawfully admitted for permanent residence" could be denied admission subsequently under section 101(aX27) of the Act if it was determined that the applicant 

had "no ties of residence or employment, either because he has 

abandoned them, or because he never had them in the first place." 

(Emphasis added.) If one does not take into account in this appeal 

the circumstances of the initial arrival of the applicants in this 

country when they first received permanent resident status, it 

seems to me that the analysis which follows is a bit awkward, and 

the Board and federal court decisions which are cited end up somewhat beside the point. 

Here, the applicants were admitted, and returned to Japan 3 or 4 

weeks after their admission, having stayed at a relative's home. 

Their visit was somewhat longer than that of their husband and 

father, the principal immigrant in the family, from whose immigrant status they derived their right to immigrate. He had come to 

the United States in 1982, been admitted as a permanent resident, 

and returned to Japan where he was studying and working. He apparently left before the applicants themselves arrived. He never returned to the United States after that. The applicants, as noted by 

the majority, made a number of short visits to the United States 

over a period of several years, during which time they established 

none of the ties ordinarily associated with permanent residence. 

We are thus faced with a situation in which these applicants 

wish to be considered lawful permanent residents who are returning from "temporary" visits abroad under circtanstances which 

clearly establish that no permanent residence was ever established. 

The applicants have never asserted that they intended to emigrate 

tio the United States independently of their husband and father, or 
Interim Decision #3079 

that they established a separate household. The record, to the contrary, shows without doubt that they continued to reside with him, 

that his employment and studies determined where they would 

live. It was his choice to live, study, and work in Japan for an indefinite period, a choice to which he was obviously committed even 

prior to the time he journeyed to the United States to obtain his 

permanent resident status. It is not necessary to conjecture as to 

his intentions, or probe his mind; his conduct is ample evidence of 

what he desired to do and in fact did do. The applicants here followed his lead and merely returned to the United States when it 

was convenient, in order to maintain the pretense that they "intended" to reside in the United States, and so maintain their 

lawful permanent resident status. 

Under these cirdumstances, the immigration judge was correct in 

finding that the applicants had never established a permanent residence in the United States. As this is so, they cannot be considered 

persons who are returning from "temporary" visits abroad. Their 

visits to the United States have been temporary, their permanent 

residence has been abroad. 

For these reasons also I would dismiss the appeal.