Interim Decision #2429 

MATTER OF WINKENS 

In Deportation Proceedings 

A-11953287 

Decided by Board September' 9,'1975 

Respondent gained lawful permanent residentstatus through his parents upon admission 

to the United States in 1959 when he was 4 years of age. In 1968, when he was 14 years 

of age, his parents abandoned their residence in this country and returned to Germany, 

taking him with them. The abandonment of their permanent resident status is imputed 

to respondent, who was subjed to their custody and control. Hence, he cannot be 

considered a lawful permanent resident returning from a temporary visit abroad upon 

his return to this country on December 19, 1972; at that time he made an "entry" within 

the meaning of section 101(a)(13) of the Immigration and Nationality Act. [Matter of 

Bauer, 10 I. & N. Dec. 304, distinguished.] 

Cnikriami 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Nonimmigrant visitor-

-remained longer. 

Ort BEH.LF OF IMOrONDENT: ON BEHALF OF SERVICE: 

Douglas P. Haffer, Esquire Paul C. Vincent 

San Francislon Neighborhood Legal Appellate Trial Attorney 

Assistance Foundation 

2701 Folsom Street Bernard J. Hornbach 

San Francisco, California 94110 Trial Attorney 

This is an appeal by the Trial Attorney, on behalf of the Immigration 

and Naturalization Service, from the immigration judge's order terminating proceedings. The appeal will be sustained, and the proceedings 

remanded for consideration of the respondent's application for adjustment of status pursuant to section 245 of the Act. 

The respondent is a native and citizen of Germany, who was admitted 

to the United States as an immigrant on September 25, 1959, at which 

time he was 4 years of age. He remained in the United States with his 

parents until 1968, when they decided to move back to Germany and 

took him with them. At that time he was 14 years of age. He testified 

that he had not wanted to leave but that " . . .there was no way I could 

stay by myself' (Tr. p. 5). He returned to the United States, at the age 

of 18, on December 19, 1972, classified as a nonimmigrant visitor, 

authorized to remain until March 15, 1973. He has stayed thereafter and 

is charged with overstaying as a nonimmigrant. 

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Interim Decision #2429 

The immigration judge terminated the proceedings, in a decision 

dated October 24, 1974, in reliance upon our decision in Matter of Bauer, 

10 I. & N. Dee. 304 (BIA 1963). Matter of Bauer, supra, does not govern 

this case. Unlike Bauer's parents, this respondent's parents did not 

retain their United States residence' hen they left this country in 1968. 

The abandonment of their lawful permanent resident status is imputed 

to the respondent, who was subject to their custody and control. He had 

gained lawful permanent resident ,status through them, and he lost it 

when they abandoned their residence and took him with them. The 

respondent made an "entry;' when he arrived in the United States on 

December 19, 1972, and, although once lawfully admitted for permanent 

residence, he cannot be considered an alien lawfully admitted for permanent residence who is returning from a temporary visit abroad. 

ORDER: The appeal is sustained and the record remanded for 

further proceedings consistent with the above decision. 

Board member Irving A. Applemariabstained from e-orisideration of this case. 

452