Interim Decision #2168 

MATTER OF NAKOI 

In Deportation Proceedings 

A-13933641 

Decided by Board October 11, 1972 

A lawful permanent resident alien's departure to Canada in August 1967 to 

fulfill a 9-month-academic-year teaching contract was not an "innocent, 

casual, and brief excursion abroad" within the ambit of Rosenberg v. Fleuti, 

374 U.S. 449 (1963), notwithstanding a continuing intent to maintain his 

United States residence; hence, upon his return to the United States in 

December 1967 he made an "entry" within the meaning of section 101(a)(13) of 

the Immigration and Nationality Act upon which to predicate a ground of 

deportation. 

CHARGE: 

Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251]—Convicted of clime 

involving moral turpitude committed within five years 

after entry and sentpnred to confinement or confined 

therefor in a prison or corrective institution for a year 

or more (kidnapping--18 U.S.C. 1201-1970) 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Julius C. Biervliet, Esquire A. L. Tadlock 

Legal Aid Society Acting Trial Attorney 

11 Park Place (Brief filed) 

New York, New York 10007 

(Oral argument scheduled but counsel did not 

appear) 

On March 14, 1972, having no application for discretionary relief 

before her for consideration, the special inquiry officer directed 

that the respondent, who had conceded deportability, be deported 

from the United States to Austria on the charge contained in the 

order to show cause. The respondent, who was not then represented by counsel, waived his right to appeal from that decision, 

which thereby became final. A warrant for his deportation was 

issued on April 6, 1972. 

The respondent subsequently moved for reopening of his proceedings. That motion, which was unopposed by the Service, was 

granted and a forthPr hearing was held. On September 1, 1972, the 

special inquiry officer again entered an order of deportation, as 

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Interim Decision #2168 

above. The respondent took a timely appeal therefrom, to bring 

the case before this Board for review. That appeal will be dismissed. 

The respondent, a 35-year-old single male alien, is a native of 

Hungary and a naturalized citizen of. Austria. He was originally 

admitted to the United States as a student in 1963. 1His status was 

adjusted to that of a permanent resident on or about April 15, 

1965. He thereafter made several trips outside the United States, 

his returns from which would have posed no problem except for 

one fact. He was convicted in the United States District Court for 

the Southern District of New York, of the crime of kidnapping, 

committed on or about May 26, 1970, in violation of 18 U.S.C. 1201, 

and sentenced to confinement in a prison or corrective institution 

for a period of three years. 

It is well established and uncontested here that the crime of 

which the respondent stands convicted involves moral turpitude? 

Thus, he is deportable if any of the returns he made within five 

years preceding the commission thereof (1970) constituted an 

"entry," within the contemplation of section 101(a)(13) of the 

Immigration and Nationality Act, 8 U.S.C. 1101. These proceedings 

are predicated on the charge that his return to the United States 

following a 1967 Canadian sojourn constituted such an "entry." 

The facts giving rise to that charge can be summarized briefly. 

As the result of correspondence between St. Mary's University, 

Halifax, Nova Scotia, Canada and respondent, he was offered and 

accepted a contract to teach (lecture) in the Theology Department 

of that institution for the academic year September 1967—May 

1968, inclusive, at a salary of approximately mow, plus lodging. 

The respondent left the United States in the latter part of August 

of 1967 to fulfill the terms of that contract, which called for him to 

commence teaching on September 1, 1967. However, differences 

arose between school' officials and the respondent which resulted 

in the termination of his employment in December of 1967. He 

returned to the United States through the port of Buffalo, New 

York, that same month? 

With two exceptions, section 101(aX13) of the Immigration and 

Nationality Act provides that any coming of an alien from a 

foreign place, whether it is a first coming or return, is an "entry" 

subjecting the alien to the exclusion and/or expulsion provisions of 

He was then a duly ordained Catholic priest. 

2 Matter of P—, 5 I. & N. Dec. 444 (BIA, 1953). 

See stipulated amendment (hearing, R-20, 21) to factual allegation No. 4, 

Order to Show Cause, charging entry at an unknown northern border port in 

April 1968 (respondent apparently made two subsequent brief trips to Halifax in 

1968, to pick up belongings and visit friends). 

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Interim Decision #2168 

the immigration laws. The two exceptions are: (1) a coming 

following an involuntary departure; (2) a coming following a 

departure which "was not intended or reasonably to be expected" 

by the alien. Thus, an alien falling within the exceptions does not 

make an "entry" upon his return because, under the law, he is 

regarded as if he had not left the United States. 

Viewing the foregoing facts in the light of the usual meaning of 

the ordinary words appearing in the statute, it would seem at first 

glance that the respondent's case does not fall within either of the 

stated exceptions. The record contains not the slightest indication 

that the respondent's presence in Canada was the result of either 

coercion or inadvertence. It indicates, rather, that he fully intended and/or reasonably expected to go there. But we cannot 

dispose of the problem here that simply, because of the 1963 ruling 

of the Supreme Court of the United States in the case of Rosenberg v. Fleuti, 374 U.S. 449 (10 L.Ed. 2d 1000, 83 S.Ct. 1804), that 

the intent exception to. section 101(a)(13) means "an intent to 

depart in a manner which can be regarded as meaningfully 

interruptive of the alien's permanent residence." 

Respondent contends his case falls within the Fleuti "intent" 

rule, supra, for the reason that he never intended to abandon his 

permanent residence in the United States. He argues that: all 

during the time he was in Canada he was in the process of 

establishing a mail order export-import business in the United 

States,4in contemplation of leaving the religious life; he had a 

business address (post office box) in Cambridge, Massachusetts, in 

connection therewith; he made trips back to the United States 

from Canada in October and November of 1967, each of about two 

weeks' duration, to conduct that business—both at his Boston 

importer's office and in travels around the Eastern United States; 

on those occasions he, stayed at the home of various religious 

orders where he had lived prior to going to Canada and where he 

resided between the time of his final return from Canada (footnote 

3, supra) and his departure from the clerical ranks; 5and in 

October of 196'7 he notified Service officers at Pittsburgh, Pennsylvania and Boston, Massachusetts of his absence from the United 

States and his "permanent" United States address. He submits 

that the fact that his business venture ultimately failed is of no 

consequence. 

While not challenging the respondent's last stated proposition, 

we reject his basic contention and find wanting his supporting 

factual argument. In our opinion, "intent to abandon permanent 

4 He claimed he also attempted to set up a similar business in Canada during 

that poriod, but was unsuccessful. 

5 He was apparently relieved of his priestly obligations in 1970. 

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resident status" is not synonymous with "intent to depart in a 

manner which can be regarded as meaningfully interruptive of 

permanent residence." We are not aware of any judicial decisions 

equating the two concepts, and respondent has cited none. On the 

contrary, it has been, administratively determined, for reasons 

which are equally applicable here, that a continuing intent to 

maintain United States residence is not decisive, 6but is merely 

one factor to be considered in determining whether an alien's 

departure was intended to be meaningfully interruptive of his 

permanent residence? • 

We must, therefore, evaluate the foregoing factor together with 

others which the Supreme Court in Fleuti, supra, pointed up as 

being relevant in determining whether a departure had been 

intended to be disruptive of residence, to wit: length of the 

absence, purpose of the visit, need to secure travel documents. In 

weighing these considerations, we cannot overloo1 the Court's 

admonition in Fleuti, supra, that "an innocent, casual, and brief 

excursion by a resident alien outside this country's borders ... 

may not subject him to the consequences of an, 'entry' into the 

country on his return." 

The facts recited above indicate that the respondent may well 

have had a continuing intent to return to the United States from 

Canada at all times here pertinent, despite his abortive attempt to 

set himself up in business there (footnote 4, supra). Also, the 

purpose of his trip was ostensibly bona fide, honorable, lawful, and 

not necessarily inconsistent with any policy reflected in our immigration laws. Nevertheless, it is our judgment that respondent did 

make an entry when he returned from Canada in December of 

1967. 

Well in advance of his August 1967 departure, the respondent 

made plans to be in Canada for a period of approximately nine 

months. Obviously, those same plans contemplated his being 

present there basically all the time during that period. They also 

involved substantial remuneration for respondent's services. The 

effect thereof certainly was not materially altered by the unscheduled change in circumstances occurring four months after his 

departure. 

When the respondent departed from the United States, he was 

inspected by a Canadian immigration officer. To gain admission to 

Canada, he had to show that officer his "green alien registration 

card" (Form 1-151) and a letter from St. Mary's University concerning his employment. At that time, the officer warned the 

respondent that if he sold anything in Canada he would have to 

Matter of Guitnares, 10 I. & N. Dec. 520 (BIA, 1964). 

7 See Bilbao-Bastida v. INS, 409 F.2d 820 (C.A. 9, 1969). 

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pay duty on it. After two or three months the respondent had to 

obtain Canadian license plates for his previously United States 

registered automobile. 

Summarizing briefly, after careful preparation, the respondent 

departed from the United States to engage in gainful employment 

in Canada on a full-time basis for an academic year of approximately nine months' duration_ The circumstances of his admission 

to Canada to fulfill that purpose were such as to reasonably have 

caused him to consider more fully the implications involved in his 

leaving this country. 

On the foregoing bases, we conclude that this case does not 

involve "an innocent, casual, and brief excursion abroad" by a 

resident alien, within the scope of the Fleuti decision, supra. 

Therefore, we hold that the respondent's departure to Canada in 

August of 1967 was "meaningfully interruptive" of his resident 

alien status and did subject him to the consequences of an "entry" 

upon his return to this country in December of 1967. Accordingly, 

and in view of the foregoing, the special inquiry officer's order of 

deportation is affirmed. All we need add is that, as pointed out by 

the special inquiry officer, the crime of which the respondent 

stands convicted renders him ineligible for discretionary relief 

from deportation. 

ORDER: It is ordered that the appeal be and it is hereby 

dismissed. 

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