Interim Decision 412216 

MATTER OF MONTERO 

In Deportation Proceedings 

A-13198996 

Decided by Board August 9, 1973 

(1) An alien abandoned her lawful permanent residence upon her departure from 

the United States during March 1963 when she returned to her husband, 

children, home, business and financial resources in the Dominican Republic 

since she had no fixed intention to return to the United States within a period 

fixed by an early event. 

(2) An alien's voluntary statement of renunciation of United States residence 

given to an immigrant inspector in a non-custodial setting was not invalid for 

lack of due process because of failure to give Miranda notice as to right to 

counsel. 

CtiARGE: 

Order: Act of 1952—Section 241(aX2) (8 U.S.C. 1251(a)(2)]—Non-immigrant 

visitor—remained longer than permitted. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Esther M. Kaufman, Esquire Irving A. Appleman 

1823 "L" Street, N.W., Suite 102 Appellate Trial Attorney 

Washington, D.C. 20036 

Antonio C. Martinez, Esquire 

324 West 14th Street 

New York, New York 10014 

(Rrief filed) 

This is an appeal from the order of the immigration judge 

finding the respondent deportable, denying her application for a 

waiver of documents, and granting her the privilege of voluntary 

departure. The appeal will be dismissed. 

The record relates to a married female alien, 42 years of age, a 

native and citizen of the Dominican Republic. She was granted an 

immigrant visa on October 26, 1962, at which time she stated that 

it was her intention to go to the United States permanently, to 

work in New York. She married a Dominican on January 1, 1963. 

She entered the United States alone on February 22, 1963 in 

possession of her immigrant visa. She stayed in New York City in 

the apartment of the sister of the father of her children for about 

20 days. Immediately after receiving her 1-151 (Alien Registration 

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Receipt Card), she returned to the Dominican Republic, where she 

and her husband owned and operated a business. 

In order to purchase merchandise for her business, she thereafter started making frequent shopping trips to Puerto Rico. On 

April 16, 1964, during questioning by an immigrant inspector, she 

signed a statement that she resided in the Dominican Republic, 

not in the United State; and that she "renounced" her "residence" in the United States and would thereafter travel to the 

United States with a visitor's visa. She surrendered her alien 

registration card to the immigrant inspector. From 1964 to 1970 

she entered the United States numerous times with a visitor's 

visa. She is now in the United States pursuant to her latest entry 

as a nonimmigrant visitor, the date of which was April 9, 1970. She 

was authorized to remain until April 30, 1970. She has remained 

thereafter without authority. 

At the deportation hearing, the respondent claimed that she 

was improperly deprived of her resident status during the interview with the immigrant inspector on April 16, 1964. She claims 

that she should have been afforded an exclusion hearing before an 

immigration judge and warned of her right to counsel before a 

statement was taken. Inasmuch as she was not warned, she claims 

that her due process rights were denied and that her status as a 

resident continues to the present time. Consequently, she claims 

that she should be considered a lawful permanent resident and 

deportation proceedings terminated. She further requests that, 

pursuant to section 211(b), documentary requirements be waived, 

retroactively, to excuse the fact that she did not present the 

documents required of a returning resident at the time of her 

present entry. The immigration judge found that she could not 

have qualified for returning resident status on April 16, 1964 and 

dehied her application for a waiver of documents. We agree with 

his finding and decision. 

On April 16, 1964 the respondent was entitled to be admitted as 

a returning resident only if she was returning to the United States 

from a temporary visit abroad. The facts indicate that on that date 

she was not returning from a temporary visit abroad. Even 

without considering her 1964 statement renouncing her residence, 

it is clear from her present testimony that she had no fixed intent 

to return to the United States when she departed during March 

1963. To establish that a visit abroad was temporary, the alien 

must show that he or she departed with a fixed intent to return, 

Matter of B--, 9 L & N. Dec. 211(BIA, 1961), reversed on other 

grounds, Barrese v. Ryan, 203 F. Supp. 880 (D. Conn., 1962); Santos 

v. INS, 421 F.2d 1303 (CA. 9, 1970). "The intention of the departing 

immigrant must be to return within a period relatively short, fixed 

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by some early event," U.S. ex rel Lesto v. Day, 21 F.2d 307 (CA. 2, 

1927). The intention of the respondent was not to return to the 

United States within a period fixed by an early event. Her 

husband, children, home, business, and financial resources were 

all in the Dominican Republic. When she departed from the United 

States she did not leave behind her home; rather, she returned to 

or reestablished her home in the Dominican Republic. 

The respondent's signed statement of April 16, 1964 merely adds 

corroboration of the above conclusion. She claims that the statement was coerced because the immigrant inspector informed her 

that she could not use her alien registration card, and did not 

advise her of her right to counsel or a hearing. There is no 

evidence in the record indicating that her statement was coerced 

or otherwise involuntary. The requirement of giving advice as to 

the right to counsel is limited to a person in custody, Miranda v. 

Arizona, 384 U.S. 436 (1966). The respondent was not in custody 

when she executed the statement in question. Furthermore, it has 

been held that there is no right to advice as to the right to counsel 

during investigative stages of immigration proceedings. Matter of 

Steele, 12 I. & N. Dec. 302 (ETA, 1967). Even without the statement, 

however, the record is clear that the respondent was not admissible in 1964 as a returning resident. In fact, all of her admissions as 

a returning resident between March 1963 and April 1964 were 

erroneous on the part of the inspecting officers. 

The respondent was not prejudiced by the lack of a hearing in 

1964, inasmuch as one was furnished in 1972. The immigration 

judge considered the case from the standpoint of a 1964 exclusion 

hearing and decided that the respondent would have been then 

found excludable. She did not lose her resident status because of 

her statement renouncing her residence. Rather, she had already 

lost it, because she abandoned it when she departed during March 

1963 with no fixed intent to return. Her intent then was to reside 

permanently in the Dominican Republic. 

The fact is that the respondent did not seek to return permanently to the United States until after events in the Dominican 

Republic caused financial reverses to her business, events which 

were not foreseeable when she returned to the Dominican Republic in 1963. Inasmuch as we find that the respondent abandoned 

her lawful permanent resident status when she departed during 

March 1963, and that she was not a returning resident at the time 

of her present entry, she is not eligible for a waiver of the 

documents applicable to a returning resident. 

ORDER: The appeal is dismissed. 

It ie further ordered that, pursuant to the immigration judge's 

order, the respondent be permitted to depart from the United 

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States voluntarily within 30 days from the date of this decision or 

any extension beyond that time as may be granted by the District 

Director; and that, in the event of failure so to depart, the 

respondent shall be deported as provided in the immigration 

judge's order. 

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