ever, as of 1970, only five countries had signed the Convention, and only one country, the United Kingdom, had ratified the Convention.

The United States has not signed or ratified the Convention. This country's reluctance to do so is "probably explained by its comments during the drafting stage, which specified that Articles 6, 7, and 8 of the Convention conflicted with . . . the Immigration and Nationality Act of 1952." 16 Even if the Convention becomes effective and the United States adheres to it, it would not affect Davis' case because it contains several exceptions, whereby expatriation could still result in statelessness. One exception is "where the national . . . gives definite evidence of his determination to repudiate his allegiance." 17 Thus, even the Convention on the Reduction of Statelessness deems it appropriate to allow for voluntary renunciation of citizenship where statelessness results.

II

Davis contends that if he is not an American citizen, he is an American "national." The argument is that even if he did renounce his citizenship, this is not inconsistent with continued permanent allegiance to the United States. See section 101(a)(22) of the Act, supra. The argument fails for two reasons.

First, section 349 of the Act speaks in terms of "loss of nationality," not loss of citizenship. The Oath of Renunciation signed by Davis contained the same language:

I hereby absolutely and entirely renounce my nationality in the United States... and abjure all allegiance and fidelity to the United States of America.

We hold that when a person renounces his citizenship, he necessarily renounces his American nationality as well.

Second, there is nothing in Davis' "Statement of Beliefs" or in his subsequent conduct which would make us doubt that he did intend to abjure all allegiance to the United States. Thus, even if it were possible to renounce one's citizenship while maintaining permanent allegiance to the United States, we would find that Davis had not done so.

In view of the above, we need not decide whether the statutory category "nationals of the United States" is exhausted by (1) citizens of the United States and (2) nationals at birth, as defined by section 308 of the Act, 8 U.S.C. 1408.18

Having found that Davis is not a United States citizen or national, it

16 Duvall, "Expatriation Under United States Law, Perez to Afroyim: The Search for a Philosophy of American Citizenship," 56 Va. L. Rev. 408, 419 (1970).

17 Id, n. 67.

18 See the Koszta case, involving an Austrian subject who came to the United States, declared his intention to become an American citizen, and went abroad. Protection was granted on the theory that he had severed his relationship with Austria and had become

III

follows that he is an alien. Section 101(a)(3) of the Act, 8 U.S.C. 1101(a)(3) defines an alien as "any person not a citizen or national of the United States."

It remains to be determined whether Davis is still a lawful permanent resident alien or whether he abandoned that status. It must be emphasized that Davis is excludable under section 212(a)(20) of the Act in either case, because he is in possession of no valid documents. However, if he is an alien returning to an unrelinquished lawful permanent residence in the United States, the normal documentary requirements may be waived pursuant to section 211(b) of the Act, 8 U.S.C. 1181(b). See 8 C.F.R. 211.1(b). 19 On the other hand, if he abandoned his permanent resident status, Davis must go through the process of obtaining a new immigrant visa. See section 211(a) of the Act, 8 U.S.C. 1181(a).

The Board has held that once a colorable claim to returning lawful resident status is established, the burden is on the Government to show that that status has been abandoned. Matter of Kane, Interim Decision 2371 (BIA 1975). See Chew v. Rogers, 257 F.2d 607 (D.C. Cir. 1958).

The last time that Davis appears to have been admitted to the United States for lawful permanent residence was in 1958. In determining whether his subsequent absences from this country were "temporary visits abroad" or whether they constituted an abandonment of status, we refer to the standards set out in Matter of Kane, supra. The basic standard is the intention of the alien, when it can be determined. Attention is given such factors as the purpose of departing, the length of the stays abroad, and the extent of the alien's ties with the United States. Davis left the United States early in 1961, after having been issued a Permit to Reenter the United States (Form I-131). Information contained in the application for that permit indicates the following: that Davis was divorced, that he intended to be abroad in the United Kingdom, France, and West Germany on business for 17 days. His occupation and employer were given as travel agent and Transglobe Travel, Inc. of 119 West 57th St., New York. The permit, issued on February 8, 1961, was valid for one year.

Davis did not return for a number of years after the permit had expired. During his absence, he lived in France, remarried, and went into business. His three younger children were born. Although Davis does not remember exactly when or why he returned to the United States, he concluded at the hearing that it was sometime in the late

an American "national" entitled to protection. 2 Wharton, Digest of International Law, 357-358 (1886). See also Agata, 27 U. Pitt. L. Rev. at 39, n. 171.

19 As a permanent resident, Davis would also be exempt from the labor certification requirements of section 212(a)(14) of the Act.

sixties and that he had probably come back for "family reasons." (Tr. at p. 17) He characterized the trip as brief. (Tr. at p. 43)

Davis traveled to the United States in 1975, 1976, and 1977, and remained for approximately three months each time. Referring to the 1975 visit, he explained that he had "come over for a World citizen assembly of San Francisco." (Tr. at p. 25) With respect to his arrival in June 1976, Davis testified that he was not seeking entry as a returning resident. (Tr. at p. 26) Although a hearing was scheduled to determine his status, he returned to France before the hearing was held. Before his next visit to the United States in 1977, Davis secured a B-2 visa at Strasbourg, France, as a nonimmigrant visitor for pleasure. A nonimmigrant visitor is defined in section 101(a)(15)(B) as "an alien . . . having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure." As a visitor, Davis arrived on January 30, 1977, and was authorized to remain for three months. Two weeks before his visa expired, he returned to France. A divorce had apparently been granted in February, while he was in the United States. On May 13, 1977, he made his most recent application for admission, with no documents except his World Service Authority passport.

From Davis' testimony it is apparent that his soujourn in Europe after 1961 cannot be characterized as a "temporary visit abroad." For nearly 16 years Davis lived in Europe-principally in France where he married, raised a family, and engaged in business. His periodic trips to the United States were of brief duration and appear to have been for family or business reasons. We can find no indication that he intended to maintain his resident status throughout his absence. His decision in late 1976 to secure a nonimmigrant rather than an immigrant visa from the United States consulate in France corroborates our conclusion that Davis abandoned his status after 1961. He did not take steps to reacquire that status.

We note that Davis has obtained three immigrant visas in the past. He has several immediate relatives who are United States citizens. Any of them might submit the necessary visa petition in his behalf.

We find that Davis is excludable under section 212(a)(20) of the Immigration and Nationality Act. He is not excludable under section 212(a)(26) because he was not a nonimmigrant. There is no evidence concerning whether Davis is coming to the United States to perform labor, so the applicability of the exclusion ground under section 212(a)(14) remains in doubt; however, because of our disposition under the section 212(a)(20) ground, we deem it unnecessary to look further into the alleged requirement of a labor certification. The appeal will be dismissed.

ORDER: The appeal is dismissed.

MATTER OF WANG

In Deportation Proceedings

A-20549207

Decided by Board May 24, 1978

An alien, who has applied for adjustment of status as a nonpreference immigrant, cannot establish exemption from the labor certification requirements of section 212(a)(14) of the Act as an alien who does not intend to enter the labor market, when her sole source of income is $600 a month which her husband in Hong Kong sends to her under a Hong Kong legal separation agreement.

CHARGE:

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

ON BEHALF OF RESPONDENT: John F. Sheffield, Esquire

442 Pacific Mutual Building

523 West Sixth Street

Los Angeles, California 90014

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated June 7, 1976, an immigration judge found the respondent deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant visitor for pleasure who remained longer than authorized, ordered her deported, but granted her the privilege of voluntary departure in lieu of deportation. He also denied the respondent's application for adjustment of status under section 245 of the Act, 8 U.S.C. 1255. The respondent has appealed from that denial. The appeal will be dismissed.

The respondent, a 38-year-old native and citizen of China, last entered the United States, with her 14 year-old daughter, as a nonimmigrant visitor for pleasure on August 14, 1973. She did not depart as required. At the deportation hearing, the respondent admitted that the allegations of fact in the Order to Show Cause were true and conceded that she was deportable as charged. We, therefore, agree with the immigration judge that deportability as charged has been established by clear, convincing, and unequivocal evidence. The only issue remaining on appeal is the immigration judge's denial of the respondent's application to adjust her status to that of a lawful permanent resident.

The respondent first applied for adjustment of status with the District Director on May 29, 1974. At that time, she applied for a nonpreference immigrant visa. She claimed that she was exempt from the labor certification requirement of section 212(a)(14) of the Act, 8 U.S. C. 1182(a)(14), because she did not intend to enter the labor market. She stated that her living expenses were provided by her husband who sent her money each month from Hong Kong for her support. The District Director denied her application, finding that she did not have sufficient income to support herself and her daughter without the income derived from her husband's employment in Hong Kong, and that if he exempted her on the basis of income supplied from her husband's employment, he would also be granting her husband an exemption from the labor certification requirement since he would then be eligible to enter the United States as a second-preference spouse of a lawful permanent resident, exempt from the labor crtification requirements. The District Director denied the application in the exercise of discretion on the basis that the respondent's application wa part of an attempt to circumvent the requirement of section 212(a)(14) of the Act.

The District Director certified the record and his decision to the Regional Commissioner of the Immigration and Naturalization Service, Southwest Region, for review. The Regional Commissioner in his decision, Matter of Wang, Interim Decision 2404 (R. C. 1975), found that there was nothing in the record to contradict the District Director's finding that the respondent was attempting to evade the labor certification requirement of the Act. He agreed that the respondent was dependent on income which her husband earned, and, stated that, since there was no indication that her marriage was not viable, it followed that her husband would probably come to the United States to join her and their daughter, as soon as the respondent became a lawful permanent resident. He, therefore, agreed that her application for adjustment of status should be denied.

The respondent reapplied for adjustment of status before the immigration judge in deportation proceedings on April 1, 1976. She again claimed to be a nonpreference immigrant exempt from the labor certification requirements of section 212(a)(14) of the Act. She again stated that her husband provided her support and that she did not intend to work in this country. By the time of the deportation hearing, the respondent had procured a legal separation from her husband in Hong Kong under which he was required to pay her support in the amount of $600 a month.

The respondent testified at the hearing that she now intended to remain in the United States permanently since she did not see any possibility of a reconciliation with her husband in Hong Kong. Despite this testimony, the immigration judge also found that the respondent