Interim Decision #1831 

Memos or Cowrsinss-Slyrimo 

In Deportation Proceedings 

A-14220640 

Decided by Board December 06, 1967 

Since the continuity of residence required by section 249 of the Immigration 

and Nationality Act, as amended, is not broken by a timely voluntary departure 

(one made before an order of deportation became effective), even though 

brought about by the threat of deportation, respondent's enforced departure 

after the institution of deportation proeeedinga but before an order of deportation became effective did not break the continuity of his residence for the 

purposes of section 249 of the Act, as amended. 

Mims: 

Order: Act of 1952: Section 241(a) (2) [81:1.13.0. 1251 (a) (2) ]Entered without inspection. 

On Benny or SEBNIcc: R. A. Vielimber 

Appellate Trial Attorney 

Stephen M. SuSu 

Trial Attorney 

(Brief Sled) 

The Service appeals from the order of the special inquiry officer 

granting the respondent status as a permanent resident under section 

249 of the Act. Hearing will be reopened. 

Respondent, a 31-year-old divorced male, a native and citizen of 

Mexico, entered in October 1957 by falsely claiming to be a United 

States citizen. Previous to this entry, the Service had compelled him to 

depart. He left without an order of deportation (August 14, 1957). The 

special inquiry officer found that the respondent had resided in the 

United States since he had been brought as an infant in February 1933. 

Respondent's long residence persuaded the special inquiry officer to 

grant relief although he hag an arrest record for drunkenness. 

The Service contends that respondent failed to establish that he is 

eligible for relief, that he is of good moral character or that he merited 

relief as a matter of discretion. 

In opposition to the appeal, respondent asked that he be permitted 

to remain in the United States. He stated that he is residing with his 

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Interim Decision #1831 

wife, that she has not received a final divorce from him, that it would 

be hard for him to go to Mexico where he has never lived, and that 

he is performing a useful function as a forest fire fighter. 

The Service advances three contentions about respondent's residence. 

The Service believes that the continuity of residence required by section 249 1must be considered broken by his voluntary departure on 

August 14, 1957 after deportation proceedings. The contention must be 

rejected. It is based upon what appears 'to us the faulty analogy of a. 

departure which was the result of a deportation proceeding but was 

not made while an order of deportation was in effect 2 to a departure 

under an order of deportation (which does terminate residence (Mrvica 

v. Esperdy, 376 U.S. 560) ). The difference between the two situations 

is considerable. A deportee who has not received permission to return 

is ineligible for a visa and commits a felony upon his return; the qualified alien who made a timely voluntary departure can return for either 

temporary or permanent residence without permission. In view of the 

difference in the two situations, we see no reason to apply the Mmvica 

rule to one who made a timely voluntary departure. We conclude that 

the continuity of domestic residence required by section 249 is not 

broken by a timely voluntary departure; even one brought about by 

the threat of deportation. 

The same conclusion was reached in Matter of Young, Int. Dec. No. 

1429, where the alien made a timely voluntary departure under a 

grant of voluntary departure made in. deportation proceedings. The 

cases cited by the Sevice are distinguishable. In lirvica v. Esperdy, 

supra, the alien was deported. Re "was not intended to be readmitted 

as a resident" (at p. 567). The Court refused to consider what the situation might have been "in the absence of a valid deportation" (at p. 

567). Matter of leal,10 I. & N. Dec. 460, and Matter of P—, 8 I. & N. 

Dec. 167, involved aliens who were excluded and deported. Matter of 

Marcos, Int. Dec. No. 1624, involved an alien who, removed from the 

United States under section 23 of the Immigration Act of February 5, 

1917, was ineligible to reenter without special permission. The removal 

may, therefore, be considered in the nature of a. deportation. Matter of 

Marcos, A-175194'77, A-1'7519178, BIA, September 29, 1967, cited by 

Section 249(b) of the Act provides the alien must establish he "has had his 

residence in the United States continuously since such entry [since prior to 

June 30, 1948] ; .. •" 

'Respondent's departure in 1947 is not considered a deportation. The regulations provide that one who made a timely voluntary departure under a grant of 

voluntary departure which contained a proviso requiring his deportation for 

failure to depart timely "shall not be considered to have been deported" (8 CPR 

243.5). (By a timely departure we mean one made before an order of deportation 

became effective.) 

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Interim Decision #1831 

the Service, is not apposite. Morcos, seeking a preference quota status 

for his wife and daughter, had to establish that he was an alien lawfully admitted for permanent residence. An order of deportation was 

outstanding in his case. We held that he could no longer be considered 

a lawful permanent resident for this reason. We are not confronted 

with a similar situation here. 

The Service contends that for a period before and after June 30, 

1945 respondent was a minor so that wherever may have been the 

place he was physically present, he must be considered as a resident 

of Mexico since his father during all this time had his principal residence in Mexico. The Service relies on Matter of Bauer, 10 I. & N. Dec. 

304. The contention is not sound. In Bauer, the issue was whether a 

minor who left the United States with his parents for a temporary 

foreign sojourn made an "entry" upon his return to the -United States. 

The question of "entry" is not involved here as to his original entry 

about 1933, for as to it the "definition of the term 'entry' eliminates 

the question of voluntariness" (Matter of Bauer, supra, at p. 308). 

The question is here as to where respondent's principal, actual dwelling place in fact was during the necessary period. 

The third point as to residence made by the Service is one of fact. It 

is that respondent has failed to establish he was actually physically 

present in the United States for the necessary period. This issue was 

not made at the hearing. We shall reopen the hearing so the Service 

may make its ease and respondent have an. opportunity to answer it. 

At the reopened hearing, the Service may also present its contentions concerning respondent's good moral character. 

ORDER: It is ordered that the special inquiry officer's order of 

July 17,198'7 be and the same is hereby withdrawn. 

It i8 further ordered that proceedings be reopened for action consistent with our decision. 

598