CONCLUSIONS

Turning now to the facts of this case, we find that the applicant was lawfully admitted for permanent residence and sought to retain her status as a lawful permanent resident of the United States by making annual trips to the United States. However, her desire to retain her status, without more, is not sufficient. To have retained her status, it is required that there have been no change in her status, and that her visits abroad have been temporary. We find that her status changed after her 1967 departure.3 Beginning in 1967, the applicant's trips abroad were not for a specified purpose of limited duration. On the contrary she has been living in Jamaica indefinitely. Her returns were related solely to the preservation of her Form I-151 as a reentry document, rather than the resumption of any permanent resident status in this country. The returns were brief and technical interruptions of an absence which has continued in essence since her departure in 1967, as typified by this last attempted reentry when she traveled here on the first portion of a round-trip 21-day excursion airplane ticket from and back to Jamaica. Neither her business nor residence ties are in the United States. She has no job in the United States. Her husband resides in the United States but she separated from him and moved to Florida prior to her 1967 departure. She appears to have a sister in the United States, but there is no showing that she makes her home with her sister. During each of her annual trips to the United States, she has rented accommodations on a temporary basis in a rooming house in Florida. She has left some belongings there on occasion, but that alone is not sufficient. In Jamaica she has a house in which she lives and which constitutes her place of business. Her offspring all reside in Jamaica. We find that she is not admissible as a lawfully returning resident alien and is excludable for lack of a valid immigration document. ORDER: The appeal is dismissed.

Theodore P. Jakaboski, Alternate Board Member, submits a concurring opinion. Although the result reached by the majority is correct, there are two legal points concerning which I respectfully disagree.

First, the treatment of the question of burden of proof in the majority opinion unnecessarily casts the issue in terms of a choice between two

3 All of the applicant's absences since her 1967 departure are relevant, because she must have had lawful permanent resident status at the time of her last departure. That in turn, is dependent on her having maintained it since the time of her first departure. If any of her absences have been other than temporary in nature, she has lost the status of lawfully admitted immigrant and would not now have that status.

She testified at the hearing that she would now stay permanently if that is required. If her status has already changed because her trip or trips were not temporary, she cannot restore it now.

mutually exclusive positions: the applicant bears the burden of proof to establish returning resident status or the Immigration and Naturalization Service has the burden of showing it lacking. According to law, section 291 of the Immigration and Nationality Act, the applicant has the burden of proving that he is not subject to exclusion. As the dissent points out, that burden never shifts. In my opinion, the majority order relies overly much on the language contained in Chew v. Rogers, 257 F.2d 607 (D.C. Cir. 1958) which states: ". . . if Chew is to be deprived of his status . . . the . . . Service may do so only in proceedings in which [it] is the moving party, and it bears the burden of proof. . ." It is unlikely that the court wanted to give literal effect to the language cited. To do so would be to turn the statutory burden of proof completely around. It would be far better, in my opinion, to interpret the holding in the Chew v. Rogers case to mean that, without subtracting from the alien's burden of establishing returning resident status, once the person seeking admission has made out a prima facie showing of compliance with the statutory burden, he shall be admitted, unless the Government can show that he is no longer entitled to such status. At that point in the proceedings, if the Government seeks to deprive the alien of such status, it assumes the burden of going forward with its evidence. This is not the same thing as the Government assuming the burden of proving the applicant inadmissible. This approach seems to me to be more in harmony with the intent of the court's decision in Chew v. Rogers than requiring the Immigration Service to bear the burden of proving inadmissibility.

Second, there does not appear to be sufficient justification for eluding the plain meaning of section 101(a)(33) of the Immigration and Nationality Act, particularly in light of the legislative history. In report of the Committee on the Judiciary which accompanied S. 2550, the Chairman of the Committee noted that "The term 'residence' as defined in section 101(a)(33) means the place of general abode, and the place of general abode of a person means his principal actual dwelling place in fact, without regard to intent." 1 His exact words now appear in section 101(a)(33) of the Act. The Chairman went on in his report to say "This definition is a codification of judicial constructions of the term 'residence' as expressed by the Supreme Court of the United States in Savorgnan v. United States, 338 U.S. 491 (1950). It is pertinent that the Savorgnan case dealt with a woman who, from 1941 to 1945, had lived with her husband and his family in Rome, except for 6 months internment in Austria. The court said: "Whatever may have been her reasons, wishes, or intent, her principal dwelling place was in fact with her husband in

1 Joint Hearings before the Subcommittees of the Judiciary. Eighty-Second Congress, First Session, on S. 716, H.R. 2379, and H.R. 2816, Bills to revise the laws relating to immigration, naturalization, and nationality, Report No. 1137, p. 4.

Rome... Her intent as to her 'domicile' or as to her 'permanent residence' as distinguished from her actual 'residence,' 'principal dwelling place,' and 'place of abode' is not material . . ." Regardless of our conception of the wisdom or unwisdom of this rule, the Congress nevertheless did adopt the Savorgnan approach in section 101(a)(33) of the Act. It is of no consequence to distinguish the Savorgnan case on the ground that it dealt with a nationality claim, for the Immigration and Nationality Act of 1952 uses the same definition for both immigration and nationality matters.

Louis P. Maniatis, Board Member, submits a separate opinion.

I agree that the appeal must be dismissed.

However, it appears to me that the majority opinion arrives at the conclusion that the burden of proof in similar type situations rests with the Service, and cities as its authority the Matter of Becerra-Miranda, 12 I. & N. Dec. 358 (BIA 1967), which in turn relies greatly on Kwong Hai Chew v. Captain Sevend Colding, 344 U.S. 590 (SC 1953) and Kwong Hai Chew v. William P. Rogers, 257 F.2d 606 (DC Cir 1958).

A correct reading of the decisions relied upon indicate that the Supreme Court in the Chew case, and the United States Court of Appeals in the second Chew case does not support the rationale adopted by the majority and from which I quote:

"... the Court held that a lawful returning resident alien was "assimilated". . . to the status of a continuous resident . . ." entitled to a due process hearing.

However, once a colorable claim to returning lawful resident alien status is established it is our view that Chew v. Rogers places the ultimate burden on the Government if the alien is to be deprived of that status, either because the status has changed, or for causes having nothing to do with status."

An analytical reading of the cited cases does not support even a colorable claim for such a conclusion. The majority took a wide paint brush and glossed over the true intent and purport of these decisions.

I respectfully submit that what the Supreme Court held in the Chew case was a narrow and restrictive determination, based on the facts of that case, that it felt justified in "assimilating" his (Chew) status for purposes of his constitutional right to due process to that of continuously present alien residents entitled to a hearing at least before an executive or administrative tribunal. The Court further stated that it did not reach the question whether or not for immigration purposes Chew was to be "treated as an entrant alien." It also stated the issue is not one of exclusion, expulsion or deportation. Nowhere does it, even in its broadest interpretation, relate to granting any specific class greater privileges to which they may be entitled to under the immigration laws.

In fact, after the Supreme Court rendered its decision, the United States Court of Appeals in the second Chew case, Kwong Hai Chew v.

Rogers, supra, carried the situation one step further, declaring that if Chew is to be deprived of his status . . . a status described in Kwong Hai Chew v. Colding, supra, as "assimilated.. to that of an alien continuously residing and physically present in the United States," the Immigration and Naturalization Service may do so only in proceedings in which the Service is the moving party, and bears the burden of proof. It must be noted that Chew v. Rogers, supra, applies only to the status described in Chew v. Colding, supra.

If there was any doubt as to the Supreme Court's decision in Chew v. Colding, supra, it was found necessary by this tribunal to elaborate and explain the position taken in the Chew case, in a later decision in Edward J. Shaughnessy v. United States of America, ex rel. Ignatz Mezei, 345 U.S. 206 (SC 1953). There the Court held:

"For purposes of the immigration laws, moreover, the legal incidents of an alien's entry remain unaltered whether he has been here once before or not. He is an entering alien just the same and may be excluded if unqualified for admission under existing immigration laws. (underscoring supplied)

To be sure, a lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process (citations omitted). Only the other day we held that under some circumstances temporary absence from our shores cannot constitutionally deprive a returning lawful resident alien of his right to be heard (reference is made to the Chew v. Colding case). On the facts of that case including reference to Section 307(d)(2) of the Nationality Act of 1940, 8 U.S.C. Section 707(d)(2), we felt justified in "assimilating" his status for constitutional purposes to that of continously present alien residents entitled to hearings at least before an executive or administrative tribunal.” (underscoring supplied)

Due process has never been precisely defined for the reason that it cannot always mean the same, since procedure must be adapted to the particular case. It does not always mean proceedings in court. The fundamental requirement is an opportunity for a hearing and a defense, but no fixed procedure is demanded. It does not refer to any general system of law, but must be construed with reference to historical developments and such acts of government as settled maxims of law and custom.

The only requirement is that procedural due process of law be afforded the alien and under section 291 of the Immigration and Nationality Act the burden is upon such alien to prove his entitlement to

enter.

Great stress has been placed, by the majority, on a recent Supreme Court decision in Saxbe v. Bustos, 419 U.S. 65, which in my opinion is of little comfort in the instant case. Here the exclusive issue was that of commuters.

In my opinion Becerra-Miranda, supra, misconstrues the purport and tenor of the Chew cases and I would recede from that determination.

MATTER OF GHUNAIM

In Deportation Proceedings

A-17650517

Decided by Board April 17, 1975

Respondent was charged with the crime of murder in the first degree under 29 Ohio Revised Code Annotated § 2901.01 (1954). He pleaded guilty to a charge of Manslaughter First Degree, 29 Ohio Revised Code Annotated § 2901.06 (1954), and was sentenced to serve not less than one nor more than twenty years in the Ohio State Reformatory. This manslaughter statute applies to both voluntary and involuntary manslaughter. In order to determine whether a crime involving moral turpitude has been committed under this statute, the conviction record must be analyzed. Here, respondent was indicted for murder, a voluntary crime. Examination of the conviction record leads to the conclusion that the respondent's conviction was for voluntary manslaughter, a crime involving moral turpitude. Since respondent was admitted to the United States in 1966, and convicted of this crime involving moral turpitude in 1968, he was deportable under section 241(a)(4) of the Immigration and Nationality Act.

CHARGE:

Order: Act of 1952-Section 241(a)(4) [8 U.S.C. 1251(a)(4)]—-Convicted of a crime involving moral turpitude committed within five years after entry and sentenced to a year or more, to wit: manslaughter, first degree.

ON BEHALF OF RESPONDENT: Pro se

This is an appeal from the June 30, 1970 decision of the immigration judge in which he found the respondent deportable as charged, denied the respondent's application for temporary withholding of deportation under section 243(h) of the Immigration and Nationality Act, found him ineligible for any discretionary relief, and ordered his deportation. We agree with the immigration judge, and shall dismiss the appeal.

The alien respondent, a native and citizen of Jordan, last entered the United States on November 12, 1966. In the state of Ohio he was indicted for murder in the first degree under 29 Ohio Revised Code Annotated section 2901.01 (1954). 1 The indictment stated that on September 4, 1968 he "unlawfully, purposely and of deliberate and premedi

'No person shall purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery, or burglary, kill another. . . .