b'March 24, 1977\n\n77-14\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nEffect of Presidential Pardon on Aliens Who Left\nthe Country to Avoid Military Service\n\nYou have asked us to examine the question of whether the Presi\xc2\xad\ndent\xe2\x80\x99s Proclamation and accompanying Executive order granting a\npardon to all those who violated the Military Selective Service Act\nbetween August 4, 1964, and March 28, 1973, will have the effect of\nremoving the exclusion of aliens who departed from or remained out\xc2\xad\nside the United States to avoid or evade training or service in the\nArm ed Forces. W e agree with the Immigration and Naturalization\nService (INS) that the pardon should be given that effect. We also\nagree with INS that whether an alien seeking readmittance should be\nregarded as a permanent resident alien returning from a temporary visit\nabroad, is a question of fact that should be decided on a case-by-case\nbasis. But we believe that the terms of the statute and the case law\nconstruing it permit more flexibility in making this determination than\nthe INS appears to suggest. Finally, we do not believe that an expatri\xc2\xad\nated citizen may properly be regarded as an alien lawfully admitted for\npermanent residence.1\nI.\n\nApplicability of the Pardon to 8 U.S.C. \xc2\xa7 1182(a)(22)\n\nAn alien is excluded from entry into the United States if he or she is\nwithin any of the classes enumerated in 8 U.S.C. \xc2\xa7 1182(a).2 Among the\naliens excluded under this provision are:\nAliens who are ineligible to citizenship, except aliens seeking to\nenter as nonimmigrants; or persons who have departed from or\nw ho have remained outside the United States to avoid or evade\ntraining or service in the armed forces in time or war or a period\ndeclared by the President to be a national emergency, except aliens\n1 T h e A tto rn ey G eneral subsequently approved these conclusions.\n1 T h e Im m igration and Nationality A ct, 66 Stat. 166 (1952) codified at T itle 8, United\nS tates C ode.\n\n34\n\n\x0cwho were at the time of such departure nonimmigrant aliens and\nwho seek to reenter the United States as nonimmigrants. 8 U.S.C.\n\xc2\xa7 1182(a)(22).\nProclamation 4483, issued by the President on January 21, 1977,\ngrants a pardon to everyone \xe2\x80\x9cwho may have committed any offense\nbetween August 4, 1964 and March 28, 1973 in violation of the Military\nSelective Service A ct.\xe2\x80\x9d 13 Weekly Comp. Pres. Doc. 90. The Procla\xc2\xad\nmation does not on its face purport to pardon the \xe2\x80\x9coffense\xe2\x80\x9d of depart\xc2\xad\ning from or remaining outside the United States to avoid or evade\nmilitary training or service in the Armed Forces and thereby to remove\nthe sanction of exclusion from the United States.\nExecutive Order 11967, also issued by the President on January 21,\n1977, implements the pardon by, inter alia, instructing the Attorney\nGeneral to seek dismissal of indictments for offenses covered by the\npardon. Id. Section 3 of the order provides:\nAny person who is or may be precluded from reentering the\nUnited States under 8 U.S.C. 1182(a)(22) or under other law, by\nreason of having committed or apparently committed any violation\nof the Military Selective Service Act shall be permitted as any\nother alien to reenter the United States.\nThe Executive order and the Proclamation together evince a clear\nintent to remove the exclusion imposed by 8 U.S.C. \xc2\xa7 1182(a)(22).\nBecause the Proclamation itself only mentions violations of the Military\nSelective Service Act, and the Executive order by its terms seems to\nlift the exclusion only where it would otherwise apply \xe2\x80\x9cby reason o f \xe2\x80\x99\nan underlying violation of that Act, it would appear that the intent was\nto lift the exclusion only derivatively by removing a consequence of\nhaving violated the Military Selective Service Act. However, as ex\xc2\xad\nplained below, 8 U.S.C. \xc2\xa71182(a)(22) was probably not intended to\napply to any conduct that is not also unlawful under the Selective\nService Act. The pardon therefore will have the same effect whether it\noperates derivatively or directly\xe2\x80\x94Le., by pardoning the separate \xe2\x80\x9cof\xc2\xad\nfense\xe2\x80\x9d created by 8 U.S.C. \xc2\xa7 1182(a)(22). See footnote 8, infra.\nThe present \xc2\xa7 1182(a)(22) was first enacted in 1944 in an A ct that had\nonly one other section: the predecessor to the recently repealed 8\nU.S.C. \xc2\xa7 1481(a)(10),3 which provided that any person who was a\nnational o f the United States would lose his nationality by departing\nfrom or remaining outside the jurisdiction of the United States in time\nof war or during a national emergency for the purpose of avoiding or\nevading training and service in the military forces of the United States.\n58 Stat. 746. It is evident that the two sections of the 1944 Act merely\napplied different sanctions for the same underlying conduct of leaving\nJ 8 U.S.C. \xc2\xa7 1481(a)(10) was repealed by Pub. L. No. 94-412, 90 Stat. 1258 (1976).\n\n35\n\n\x0cor remaining outside the country to avoid military training or service.4\nIndeed, by virtue of the interaction between the two provisions, a U.S.\nnational who left the country to avoid or evade training or service was\nexpatriated and, as an alien, would then be excluded from entry into the\nUnited States. See, Jolley v. INS, 441 F. 2d 1245, 1255 n. 17 (5th Cir.\n1971).\nT he Attorney General described the purpose of the expatriation\nsection of the bill in his letter to Senator Russell:\nThe files of this Department disclose that at the present time there\nare many citizens of the United States who have left this country\nfor the purpose of escaping service in the armed forces. While such\npersons are liable to prosecution for violation of the Selective\nService and Training A ct of 1940, if and when they return to this\ncountry, it would seem proper that in addition they should lose\ntheir United States citizenship. Persons who are unwilling to per\xc2\xad\nform their duty to their country and abandon it during its time of\nneed are much less w orthy of citizenship than are persons who\nbecome expatriated on any of the existing grounds. S. Rep. No.\n1075, supra.\nThe Attorney General\xe2\x80\x99s statement that persons subject to expatriation\nunder the bill would be \xe2\x80\x9cliable to prosecution for violation of the\nSelective Service and Training Act of 1940\xe2\x80\x9d if and when they returned,\nindicates that the expatriation provision was to apply where the under\xc2\xad\nlying conduct also violated that Act. His description of the sanction of\nexpatriation as being \xe2\x80\x9cin addition\xe2\x80\x9d to criminal penalties for the conduct\nfurther supports this view.5\nThe view that the expatriation section of the 1944 Act applied only\nto conduct that gave rise to liability under the Selective Service and\nTraining A ct also is reflected in the Supreme Court\xe2\x80\x99s opinion in Kenne\xc2\xad\ndy v. Mendoza-Martinez, 372 U.S. 144 (1963), which held that the\nexpatriation provision was penal rather than regulatory in nature and\nwas therefore unconstitutional because it automatically deprived a citi\xc2\xad\nzen o f his nationality without the procedural protections required in a\ncriminal trial. One of the factors the Court cited as ordinarily being\nuseful in determining whether a sanction is penal or regulatory\xe2\x80\x94and\n* In a letter dated February 16, 1944, to Senator Russell, Chairm an o f the Senate\nC om m ittee on Im m igration, the A tto rn ey G eneral stated:\nI\ninvite y o u r attention to th e desirability o f enacting legislation w hich w ould\nprovide (1) for th e expatriation o f citizens o f the United States w ho in tim e o f w ar or\nduring a national emergency leav e the U nited States o r remain outside th ereo f for\nthe purpose o f evading service in- the arm ed forces o f the U nited States, and (2) for\nthe exclusion fro m the United States o f aliens who leave this country fo r the abovem entioned purpose. S. Rep. N o. 1075, 78th C ong., 2d Sess., 2 (1944). [Emphasis\nadded].\n5 T h e A tto rn ey G en eral\xe2\x80\x99s description also indicates that the bill was intended to close a\ngap in th e coverage o f existing crim inal provisions by imposing a sanction upon those\nw h o had rem oved them selves beyond the crim inal jurisdiction o f the U nited States. See\n90 C ong. Rec. 7628-29 (1944).\n\n36\n\n\x0cone that suggested that the expatriation provision was penal in nature\xe2\x80\x94\nwas \xe2\x80\x9cwhether the behavior to which it applies is already a crime.\xe2\x80\x9d Id.\nat 168.\xc2\xae Justice Brennan explicitly stated in his concurring opinion that\nit was obvious that the expatriation provision \xe2\x80\x9cdoes not reach any\nconduct not otherwise made criminal by the selective service laws.\xe2\x80\x9d Id.\nat 191 n. 5. Because the expatriation section and the section that was\nthe predecessor of the present 8 U.S.C. \xc2\xa7 1182(a)(22) applied to the\nsame underlying conduct, it follows that the latter provision similarly\nshould be regarded as intended to apply only to conduct that also gives\nrise to criminal liability under the Military Selective Service Act.7 In\nour opinion, the President\xe2\x80\x99s Proclamation of pardon of offenses arising\nunder the Military Selective Service Act may properly be given the\neffect intended in Section 3 of Executive Order 11967 of lifting the\nexclusion from the United States which may result from the same\nconduct.\nThe leading case regarding the effect of a Presidential pardon is Ex\nparte Garland, 71 U.S. 333 (1866). In 1865, Congress enacted a statute\nproviding that no person could be permitted to practice in Federal\ncourt unless he took an oath asserting that he had never voluntarily\nborne arms against the United States or given aid or comfort to enemies\nof the United States. In holding that a Presidential pardon granted to a\nConfederate sympathizer for all offenses committed during the Rebel\xc2\xad\nlion had the effect of removing the bar imposed by the statute, the\nCourt stated:\nA pardon reaches both the punishment prescribed for the offense N\nand the guilt of the offender; and when the pardon is full, it\nreleases the punishment and blots out of existence the guilt, so that\n\n\xe2\x80\xa2 T h e C ourt did note that the elements o f the \xe2\x80\x9ccrim e\xe2\x80\x9d created by the expatriation\nprovision and that created by the Selective T raining and Service A c t w ere not identical,\n372 U.S. at 167 n. 21, but this observation appears to have been based on the conclusion\nthat the Im m igration and Nationality A ct contained an additional elem ent not found in\nthe o ther A c t\xe2\x80\x94i.e\xe2\x80\x9e departing from o r remaining outside the country for the purposes\ndeclared to be unlawful. T he C ourt did not suggest that expatriation w ould occu r even if\nthe underlying conduct did not constitute a violation o f the Selective T raining and\nService A ct.\nAlso, the expatriation section, as reenacted in the Im m igration and N ationality Act,\nprovided that failure to com ply w ith any provision o f the com pulsory service law s o f the\nUnited States raised the presum ption that a citizen departed o r rem ained outside the\ncountry for the purpose of evading o r avoiding service. 8 U .S.C. \xc2\xa7 1481(a)(10). This\nunderscores the nexus to crim inal conduct.\n\xe2\x80\x99 Section 11 o f the Selective T raining and Service A c t o f 1940, 54 Stat. 894, w hich\ncontained the crim inal provisions o f that A ct, is in all m aterial respects identical to the\nprincipal provision defining offenses and penalties under current law. See 50 U.S.C. App.\n\xc2\xa7 462(a). Thus, the present connection betw een the exclusion provision and the Selective\nService A c t appears to be as direct as it was in 1944.\n\n37\n\n\x0cin the eye of the law the offender is as innocent as if he had never\ncommitted the offense. Id. at 380.\xc2\xae\nSee also, Knote v. United States, 95 U.S. 149, 153 (1877). The language\nin E x parte Garland is now generally believed to be too sweeping. E.\nCorwin, The President: Office and Powers, 1787-1957 (1957), at 166\xe2\x80\x94\n67; W. H. Humbert, The Pardoning Power of the President (1941), at\n76-78. For example, the Court held in Carlesi v. New York, 233 U.S. 51\n(1914), that a Presidential pardon of a Federal offense did not prevent a\nState court from considering that offense for purposes of sentencing the\ndefendant under a second offender statute. The Court was careful to\nnote, however, that the N ew York statute did not purport to authorize\nadditional punishment for the pardoned offense, but only prescribed\npenalties for the later offense taking into account the character of the\noffender, including his past conduct. Id. at 57. In fact, E x parte Garland\nmay itself be viewed as a case in which the disability actually was\nimposed as a penalty rather than as a regulation of the practice of law.\nHumbert, supra, at 78 n. 95.\xc2\xae The President\xe2\x80\x99s constitutional authority to\npardon offenses carries with it the power to release all penalties and\nforfeitures that accrue from the offenses. Osborn v. United States, 91\nU.S. 474 (1875); 36 Op. A. G. 193 (1930). Thus, whether a pardon\nremoves a particular disability depends on whether the statutory provi\xc2\xad\nsion is thought to impose a penalty for an offense or merely to pre\xc2\xad\nscribe a qualification for a Governm ent benefit. 31 Op. A. G. 225, 22627 (1918). See also 39 Op. A. G. 132, 134-35 (1938); 36 Op. A. G. 193\n(1930); 22 Op. A. G. 36 (1898).\nMany o f the grounds for exclusion provided by 8 U.S.C. \xc2\xa7 1182(a)\ncould properly be regarded as establishing qualifications for entry,\nrather than punishment for past acts, and as such they would presum\xc2\xad\nably be unaffected by a Presidential pardon. This, however, cannot be\nsaid o f the ground for exclusion in 8 U.S.C. \xc2\xa7 1182(a)(22). The compan\xc2\xad\nion provision for expatriation of a citizen who departed or remained\noutside the country to avoid or evade military training or service was\nspecifically found to be penal rather than regulatory in character, in\nKennedy v. Mendoza-Martinez, supra, after an exhaustive consideration\nof the language and legislative history of the 1944 Act and its predeces\xc2\xad\nsors. The evidence of a punitive intent in the legislative history and\nantecedents o f the 1944 Act apply equally to the corollary provision for\nthe exclusion of aliens now contained in 8 U.S.C. \xc2\xa7 1182(a)(22). Similar\xc2\xad\nly, the various factors the Court identified as suggesting that the sanc* T h e four dissenters contended th a t the A c t was m erely intended to establish qualifica\xc2\xad\ntions for the practice o f law before Federal courts. In their view , the pardon could\nrelieve the beneficiary from the penalty the law inflicted for his offense, but not from\nm eeting ap p ro p riate tests o f fitness to engage in the practice o f a profession. 71 U.S. at\n396-97.\n\xe2\x80\xa2 T his interpretation o f E x parte G arland is supported by the C o u rt\xe2\x80\x99s alternative holding\nth at the professional disqualification was intended by C ongress as punishm ent for past\nacts and therefore w as unconstitutional as ex post facto legislation. 71 U.S. at 376-380.\n\n38\n\n\x0ction of expatriation was punitive on its face also apply to the sanction of\nexclusion of aliens who engage in the very same conduct. 372 U.S. at\n168-69. Exclusion from the United States certainly involves an affirma\xc2\xad\ntive restraint, and it is analogous to the devices of banishment and exile\nthat \xe2\x80\x9chave throughout history been used as punishment.\xe2\x80\x9d Id. at 168 n.\n23. From the nature of the provision it seems evident that exclusion\nmay be imposed only upon a finding of scienter, see, e.g., Riva v.\nMitchell, 460 F. 2d 1121 (3d Cir. 1972); Jolley v. INS, 441 F. 2d 1245\n(5th Cir. 1971), and its operation promotes the traditional aims of\npunishment\xe2\x80\x94retribution and deterrence. The other factors mentioned\nby the Court are also satisfied here.\nBecause it appears that Congress has imposed the sanction of exclu\xc2\xad\nsion as additional or alternative punishment for conduct that also vio\xc2\xad\nlates the Military Selective Service Act, rather than as a regulatory\nmeasure to establish the qualifications of aliens who enter the United\nStates, we agree with the conclusion of the INS that the President has\nthe constitutional power to lift that exclusion as a consequence of his\ngrant of a pardon for violations of the Military Selective Service A c t.10\nII.\n\nAuthority for Regarding an Expatriated Citizen as a Lawful\nPermanent Resident.\nINS suggests that a United States citizen who voluntarily relin\xc2\xad\nquished his citizenship can be regarded as an alien lawfully admitted for\npermanent residence. On its face, this seems to be a strained result, at\nleast as it applies to a native-born citizen. The term \xe2\x80\x9clawfully admitted\nfor permanent residence\xe2\x80\x9d is defined under the Immigration and Nation\xc2\xad\nality Act to mean \xe2\x80\x9cthe status of having been lawfully accorded the\nprivilege of residing permanently in the United States as an immigrant\nin accordance with the immigration laws, such status not having\nchanged.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1101(a)(20). A native-born citizen would never\nhave been accorded the privilege of residing permanently in the United\nStates \xe2\x80\x9cas an immigrant,\xe2\x80\x9d so it is difficult to see how he could be\nthought to revert to the status of permanent resident alien by renounc\xc2\xad\ning his citizenship. A naturalized citizen presumably has been accorded\nthe privilege of residing permanently in the United States as an immi\xc2\xad\n10 In our view , the clear punitive purpose o f 8 U.S.C. \xc2\xa7 1182(a)(22) m ight well support\na conclusion that the section itself defines an offense that may be pardoned by the\nPresident, w ithout reference to parallel provisions in the M ilitary Selective Service A ct.\nIn Kennedy v. Mendoza-Martinez, the C ourt stated that \xe2\x80\x9cC ongress has plainly em ployed\nthe sanction o f deprivation o f nationality as a punishm ent\xe2\x80\x94/o r the offense o f leaving or\nremaining outside the country to evade military service\xe2\x80\x94 w ithout affording the procedural\nsafeguards guaranteed by the Fifth and Sixth A m endm ents.\xe2\x80\x9d 372 U.S. 165-66 [emphasis\nadded]. L ong before the Suprem e C ourt\xe2\x80\x99s decision in Kennedy v. Mendoza-Martinez,\nA cting A ttorney G eneral John W. D avis advised the Secretary o f the N avy th at an\nearlier version o f the expatriation statute created an ofTense and that the disabilities\nimposed w ere therefore lifted by an unconditional pardon. 31 Op. A. G . 225, 231-32\n(1918). T h e underlying \xe2\x80\x9coffense\xe2\x80\x9d o f departing from o r rem aining outside the U nited\nStates to avoid m ilitary service under 8 U.S.C. \xc2\xa7 1182(a)(22) is the same, and it could\ntherefore be argued that the penalty o f exclusion can be lifted by a pardon intended to\nhave this result. But in view o f the conclusion reached in the text, w e need not decide\nhere w hether 8 U.S.C. \xc2\xa7 1182(a)(22) itself states a pardonable offense.\n\n39\n\n\x0cgrant at some point prior to his naturalization. But, by the terms of 8\nU.S.C. \xc2\xa7 1101(a)(20), an alien permitted to reside permanently in the\nUnited States may possess that immigrant status only as long as the\nstatus does not change. W hen a permanent resident alien becomes a\nnaturalized citizen, he loses his status as an alien altogether. Thus, the\nlanguage of 8 U.S.C. \xc2\xa7 1101 (a)(20) does not appear to contemplate that\nthe initial permanent resident status can be resurrected once it has been\nlost.\nAs the INS memorandum points out, the Board of Immigration\nAppeals held in Matter o f Vielma-Ortiz, 11 I&N Dec. 414 (1965), that a\nnaturalized citizen who had been admitted for permanent residence\nprior to naturalization reverted to the status of permanent resident alien\nwhen he automatically lost his citizenship by voting in a foreign elec\xc2\xad\ntion.11 The Board specifically noted that the expatriating act of voting\nin a Mexican election \xe2\x80\x9chad nothing to do with the continuance of the\nstatus as a lawful permanent resident of the United States,\xe2\x80\x9d Id. at 416,\npresumably meaning that the individual\xe2\x80\x99s act of voting in the particular\ncase did not manifest an intention to abandon his actual residence in the\nUnited States.12\nIt is evident that the Board interpreted the phrase \xe2\x80\x9csuch status not\nhaving changed\xe2\x80\x9d in 8 U.S.C. \xc2\xa7 1101(a)(20) to mean only that the alien\nmust not have abandoned his actual residency in the United States. We\ndo not believe that this construction is appropriate in light of subse\xc2\xad\nquent developments. In Gooch v. Clark, 433 F. 2d 74, 79 (9th Cir.\n1970), the court held that \xe2\x80\x9c the definition [in 8 U.S.C. \xc2\xa7 1101 (a)(20)]\nrefers not to the actuality o f one\xe2\x80\x99s residence but to one\xe2\x80\x99s status under\nthe immigration laws\xe2\x80\x9d [emphasis in original]. The status involved is that\nof an alien lawfully admitted for permanent residence. A person ceases\nto be an alien altogether when he becomes a naturalized citizen, and his\nstatus as an alien therefore does not remain unchanged as required by 8\nU.S.C. \xc2\xa7 1101(a)(20).13\nIt also should be noted that the Board\xe2\x80\x99s decision in Matter o f VielmaOrtiz preceded the Supreme Court\xe2\x80\x99s decision in Afroyim v. Rusk, 387\nU.S. 253 (1967), which held that citizenship may be forfeited only\n11 A b rief passage in Justice B rennan\'s concurring opinion in Kennedy v. MendozaM artinez lends som e support to the result in Vielma-Ortiz. H e observed that the G o v e rn \xc2\xad\nm ent could argue th at a citizen w ho fled the country to avoid m ilitary service, \xe2\x80\x9calthough\nexpatriated, is a resident alien subject to com pulsory m ilitary service.\xe2\x80\x9d 372 U.S. at 195 n.\n7.\nT h e evidence established that th e appellant obtained a v oter registration card and\nvoted in a M exican election primarily to further his business dealings there and that he\nintended to retu rn to his family in th e U nited States on each occasion that he w ent to\nM exico.\n\xe2\x80\x99\xe2\x80\x99 T h e Suprem e C o u rt later stated in Saxbe v. Bustos, 419 U.S. 65, 72 (1975), that it\n\xe2\x80\x9c read the A c t as did the N inth C ircuit in the Gooch case to mean that the change in status\nw hich C ongress had in mind was a change from an im m igrant lawfully adm itted for\nperm anent residence to the status of a nonimmigrant pursuant to 8 U.S.C. \xc2\xa7 1257\xe2\x80\x9d [empha\xc2\xad\nsis in original]. T his passage only speaks o f tw o different statutes that an alien may\noccupy. It does not suggest that a person m ight com e w ithin 8 U.S.C. \xc2\xa7 1101(a)(20) if he\nw as not even an alien for a period o f time.\n\n40\n\n\x0cthough a voluntary act of relinquishment. The decision in Vielma-Ortiz\nmay have stemmed from a desire to soften the harsh impact of automat\xc2\xad\nic expatriation for voting in a foreign election. The decision in Afroyim\nv. Rusk removes this pressure for a liberal construction of the statute;\nthe requirement that a person who has renounced his citizenship must\nassume the position of an alien and apply anew for an immigrant visa or\npermanent resident status is now but a necessary consequence of a\nvoluntary act. Also, as a practical matter, it would probably be rare\nthat a person who voluntarily renounced his citizenship,14 with all the\nsevering of ties that implies, would nevertheless be thought to have\nretained a permanent residence in the United States to which he might\nnow be returning from a \xe2\x80\x9ctemporary\xe2\x80\x9d visit abroad. See Part III, infra.\nTherefore, little would probably be gained by regarding an expatriated\ncitizen as an alien lawfully admitted for permanent resident.\nFor the foregoing reasons, it is our opinion that the result in VielmaOrtiz should not be followed with respect to persons covered by the\npardon who have renounced their citizenship.15\nIII.\n\nStandard for Determining W hether an Alien is Returning from\na Temporary Visit Abroad.\n\nWe agree with the position of INS that the determination whether an\nalien seeking to enter the United States is \xe2\x80\x9can immigrant, lawfully\nadmitted for permanent residence, who is returning from a temporary\nvisit aboard\xe2\x80\x9d under 8 U.S.C. \xc2\xa7 1101(a)(27)(A) should in general be\ndetermined on a case-by-case basis. Judicial and administrative decisions\narising under this section have generally looked to the facts o f the\n\n\xe2\x80\x9c T he IN S m em orandum , at pp. 10-11, notes that those w ho have been effectively\nexpatriated either applied for and obtained naturalization in a foreign c o untry or form ally\nrenounced their citizenship. 8 U.S.C. \xc2\xa7\xc2\xa7 1481(a) (1) and (6). A form al renunciation will\nusually be unam biguous in regard to subjective intent to relinquish citizenship. See, e.g.,\nJolley v. IN S , 441 F. 2d 1245 (5th Cir. 1971). But it appears that even an application for\nand obtaining o f naturalization in a foreign country o r taking an oath o f allegiance to a\nforeign c o untry will not be regarded as an effective act o f expatriation unless it is\naccom panied by an intent to abandon United States citizenship. United States v. Matheson,\n532 F. 2d 808 (2d Cir. 1976); King v. Rogers, 463 F. 2d 1188 (9th Cir. 1972).\n\xe2\x80\x9c Section 3 o f E xecutive O rder 11967 provides that any person precluded from reen ter\xc2\xad\ning the United States under 8 U.S.C. \xc2\xa7 1182(a)(22) shall be perm itted \xe2\x80\x9c as any o th er alien\xe2\x80\x9d\nto reenter the United States. A n expatriate w h o left the country to avoid m ilitary service\no r training is barred from reentry under this section. H ow ever, because such an individu\xc2\xad\nal could not be regarded as a returning resident alien, the provision for him to reen ter \xe2\x80\x9cas\nany o ther alien\xe2\x80\x9d should be construed to mean that he m ust reenter in the same m anner as\nan alien w h o no longer has the status o f an alien law fully adm itted for perm anent\nresidence. H e must therefore satisfy all entry requirem ents, including applicable quota\nlimitations.\n\n41\n\n\x0cparticular case to determine whether a given absence was temporary.16\nIt would be a departure from the usual approach in this area to follow\nOption A contained in the draft statement prepared by INS for the\nA ttorney General. Under Option A, any alien covered by the pardon\nwho had been lawfully admitted for permanent residence would auto\xc2\xad\nmatically be regarded to be returning from a temporary visit abroad\nand therefore eligible for a waiver o f documentation requirements\nunder 8 U.S.C. \xc2\xa7 1181(b).\nOption B proposed by IN S would require a case-by-case determina\xc2\xad\ntion for each alien, and it further states that it \xe2\x80\x9cis likely that most aliens\nin this category will be precluded by the length and circumstances of\ntheir absence from qualifying as returning permanent residents.\xe2\x80\x9d This is\napparently based on INS\xe2\x80\x99 conclusion (at p. 12 of Commissioner Chap\xc2\xad\nman\xe2\x80\x99s memorandum) that the rule established by the cases is that\nlengthy absence without an explanation amounting to a legal excuse\nresults in loss of returning resident status. We believe INS takes too\nnarrow a view of the concept of a \xe2\x80\x9ctemporary visit abroad,\xe2\x80\x9d especially\nin placing determinative emphasis on the duration of the visit and\napparently attaching little significance to the intent of the alien.17\nT he cases considering the question of what constitutes a temporary\nvisit abroad are not entirely consistent; the most important factor that\nemerges from the cases, however, is whether the alien had a continuing\nintent to return to the United States \xe2\x80\x94animus revertendi. See, M atter o f\nKane, I&N, Interim Dec. #2371 (April 1, 1975), at 6-8.18 As stated in\nthe most frequently cited case in this area, \xe2\x80\x9cthe intention of the depart\xc2\xad\ning immigrant must be to return within a period relatively short, fixed\n\n16 8 U.S.C. \xc2\xa7 1181(b) provides th a t the A ttorney G eneral m ay w aive the docum entary\nrequirem ent for returning resident im m igrants \xe2\x80\x9c in such cases o r in such classes o f cases\nand u n d e r such conditions as m ay be by regulations prescribed.\xe2\x80\x9d T he reference to\n\xe2\x80\x9cclasses o f cases" m ight suggest th a t a case-by-case determ ination is not absolutely\nnecessary. B ut the statute refers to classes o f \xe2\x80\x9c returning resident im m igrants"; in ord er to\nbe included in such a class in the first place, an alien m ust be returning from a tem porary\nvisit abroad. See 8 U.S.C. \xc2\xa7 1101(a)(27)(A). A n individualized determ ination w ould seem\nto be required on this point.\n17 A t one tim e, regulations im plem enting the w aiver o f the docum entary requirem ent in\n8 U.S.C. \xc2\xa7 1181(b) provided that a w aiver w ould be considered only if the tem porary\nvisit ab ro ad w as for 1 year or less. See, Tejeda v. INS, 346 F. 2d 389, 391 (9th Cir. 1965).\nT h e regulation w as am ended on M ay 7, 1969, 29 F ed. Reg. 6002, and it no longer\ncontains th e 1-year lim itation. See 8 C F R 242.7a. W aiver is now perm itted for tem porary\nvisits o f longer duration.\n18 In this regard, it m ay be useful to consider a tem porary visit abroad as being in\nc o ntradistinction to a perm anent visit. Cf. 8 U.S.C. \xc2\xa7 1101(a)(31). V iew ed in this light,\nreference to a tem p o rary visit m ay be only a label for the m ore probing question o f\nw h e th e r th e alien has retained his essential ties to the United States o r abandoned them.\nM any perm anent resident aliens w h o left the c o untry to avoid m ilitary service no doubt\nretained clo ser personal ties to the U nited States than to the c o u n try to w hich they fled.\n\n42\n\n\x0cby some early event.\xe2\x80\x9d United States ex rel. Lesto v. Day, 21 F. 2d 307,\n308-09 (2d Cir. 1927).19\nOther cases are to the same effect.20 For example, in Santos v. INS,\n421 F. 2d 1303 (9th Cir. 1970), the court held that a permanent resident\nalien who left Guam after 12 years to seek other employment was not\nreturning from a temporary visit abroad when he sought entry in San\nFrancisco some 5 years later. The court noted the Special Inquiry\nOfficer\xe2\x80\x99s finding that the alien had left with no definite intention either\nof staying away permanently or of returning, but rather with a purpose\nto let future events run their course. Thus, there was no evidence of\nanimus revertendi. Similarly, in United States ex rel. Alther v. McCandless, 46 F. 2d 288, 290-91 (3d Cir. 1931), the court held that the mere\nabsence of an intent to remain abroad permanently was not sufficient if\nthere was no evidence of an affirmative intent to return to the United\nStates. It is important to note, however, that the court considered the\nalien\xe2\x80\x99s intent in determining whether his visit abroad was temporary\neven though he had been out of the country for more than 8 years. See\nalso, Gamero v. INS, 367 F. 2d 123 (9th Cir. 1966) (alien away 17 years\nheld to have abandoned any intent he may once have had to return to\nthe United States); United States ex rel. Polymeris v. Trudell, 49 F. 2d\n730, 732 (2d Cir. 1931) (absence of 7 years); Barrese v. Ryan, 203 F.\nSupp. 880, 888-89 (D. Conn. 1962) (intent of alien controls where it can\nbe ascertained); Matter o f Montero, 14 I&N Dec. 399, 400 (1973). These\ncases at least establish that the extent of the visit is not controlling\nwhere the intent of the alien may reasonably be questioned. United\nStates ex rel Polymeris v. Trudell, supra, 49 F. 2d at 732; Matter o f\nKane, supra, at 6-7.\nIt is true that courts have cited factors in addition to the intent of the\nalien in determining whether a given visit was temporary. Others con\xc2\xad\nsidered have included the duration of the visit and whether the alien\nhas a residence, family ties, property holdings, employment, or business\nin the United States. See, e.g., Alvarez v. District Director, INS, 539 F.\n2d 1220, 1224-25 (9th Cir. 1976); Santos v. INS, supra; United States ex\nrel. Lesto v. Day, supra; United States ex rel. Alther v. McCandless, supra;\nM atter o f Castro, 14 I&N Dec. 412, 494 (1973). But it is not apparent\nT h e c o u rt also held that m ere retention o f dom icile is insufficient, standing alone, to\nmake a visit tem porary. 21 F. 2d at 308. T his conclusion seems sound, because a person\nretains his p rio r dom icile until he affirm atively establishes a new one, even if he has no\nintention o f returning to the place o f domicile. Restatem ent (Second) o f Conflict o f L aw s\n\xc2\xa7 19.\n" W e also find no requirem ent articulated in the cases that when an alien\xe2\x80\x99s absence is\nprotracted he must have an explanation am ounting to a \xe2\x80\x9clegal excuse.\xe2\x80\x9d R ather, w hen a\nstay is protracted, the courts appear to look for an explanation that w ould perm it a\nconclusion th at the alien had the intent to return and that his visit w as therefore\n\xe2\x80\x9ctem porary\xe2\x80\x9d despite its duration. T he State D epartm ent regulation providing th at a\nprotracted visit is not tem porary, unless it w as caused by reasons beyond the alien\xe2\x80\x99s\ncontrol and for w hich he was not responsible, does not control here. T he applicable IN S\nregulation only requires a \xe2\x80\x9ctem porary absence,\xe2\x80\x9d w ithout the additional lim itations con\xc2\xad\ntained in the State D epartm ent regulation. See 8 C F R 242.7a.\n\n43\n\n\x0cwhether these factors are cited merely as objective manifestations of the\nalien\xe2\x80\x99s animus revertendi (or lack thereof), or whether they are meant to\nhave independent legal significance. For the most part, we think they\nare primarily useful as indicia of the alien\xe2\x80\x99s intent. See, M atter o f Kane,\nsupra, at 7-8. O f these additional factors, we are inclined to attach\nsubstantive significance solely to the duration o f the stay abroad, if only\nbecause the word temporary connotes an element of duration. C f,\nGamero v. INS, supra, 367 F. 2d at 127.21 The view that there are\nultimate durational limits on a \xe2\x80\x9ctemporary visit\xe2\x80\x9d is evident in the\npassage from United States ex rel. Lesto v. Day, quoted earlier, that \xe2\x80\x9cthe\nintention of the departing immigrant must be to return within a period\nrelatively short, fixed by some early event.\xe2\x80\x9d 21 F. 2d at 308-09.\nIt seems likely that many permanent resident aliens who left the\ncountry to avoid military service did so with the specific intent of\nstaying away \xe2\x80\x9cfor the duration\xe2\x80\x9d and returning to the United States\nwhen it was possible to do so without incurring criminal liability. In\nour view, the formulation in United States ex rel. Lesto v. Day is\nsufficiently flexible to permit the Department to regard the \xe2\x80\x9cduration\xe2\x80\x9d\nas a \xe2\x80\x9cperiod relatively short\xe2\x80\x9d under the special circumstances present\nhere, with that period being fixed by the \xe2\x80\x9cearly event\xe2\x80\x9d of a Presidential\npardon, whenever it might come. C f, Gamero v. INS, supra, 367 F. 2d\nat 126. This approach is particularly justified here because the principal\ndeterrent to the aliens\xe2\x80\x99 return\xe2\x80\x94and therefore the principal reason why\ntheir visits abroad became protracted\xe2\x80\x94was the fact that they had\ncommitted offenses that could give rise to criminal liability.22 The\npardon excuses these very offenses. It is consistent with the purposes of\nthe pardon to insure that its beneficiaries are not penalized by attaching\nundue significance to the duration of the visit, which resulted from the\ncommission o f the pardoned offenses.\nThis is not to say that every pardoned alien who was once lawfully\nadmitted for permanent residence must automatically be regarded as a\npermanent resident returning from a temporary visit abroad. A factual\nquestion may still exist in some cases as to whether the alien possessed\nthe requisite animus revertendi during his absence. Because of the\npardon, the A ttorney General might wish to consider instructing INS\nto adopt a liberal policy in this regard or to make clear that a protract\xc2\xad\ned stay due to the possibility of criminal liability will be regarded as a\ntem porary visit abroad if the alien intended to return when he could do\nso without incurring criminal liability. It might even be possible, as a\n21 T hus, if an alien left the country w ith a fixed intention to return to the United States\nafter 20 years, the c onceded presence o f animus revertendi for that period w ould probably\nnot alone perm it the alien\xe2\x80\x99s visit ab ro ad to be regarded as "tem porary.\xe2\x80\x9d But that will not\nbe the situation w ith m any perm anent resident aliens w ho will benefit from the pardon.\nCf., Matter o f Castro, 14 I& N Dec. 492, 494 (1973).\nM T hus, aliens w h o remained out o f the c o untry because o f their possible criminal\nliability have an explanation for th eir protracted stay that is consistent w ith an intent to\nreturn to the U nited States as soon as they could. C f, United States v. Trudell, 49 F. 2d at\n732; Matter o f Kane, supra, at 7. See n o te 18, supra.\n\n44\n\n\x0cprocedural matter, to adopt a presumption that a permanent resident\npossessed the intent to return during his absence, although this would\nto some extent be in derogation of the case-by-case approach normally\nfollowed.\nJohn M. H\n\narmon\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n45\n\n\x0c'