established, on the basis of testimony and documents presented, the requisite continuous residence in the United States since prior to June 28, 1940. However the Service contends that the respondent interrupted the continuity of his residence by his voluntary depar ture on March 15, 1947 because this voluntary departure occurred after the institution of deportation proceedings; that any departure from the United States after deportation proceedings have been instituted breaks the continuity of residence for the purpose of section 249 relief.

I

The term "residence" means the place of general abode, the place of general abode of a person means his principal, actual dwelling place in fact without regard to intent. The Service has commingled the definitions of "entry" and "residence" to result in the conclusion that a person whose departure is occasioned by deportation proceed ings could not claim that he had not made a new "entry" into the United States. It is conceded that the respondent made a new "entry" into the United States when he entered without inspection on or about July 4, 1947 after his voluntary departure. Since section 249 of the Immigration. and Nationality Act requires continuous residence in the United States since prior to June 28, 1940, it is apparent that the significant term is "residence" and that the ques tion to be determined is whether such residence was continuous or was broken by a voluntary departure pursuant to deportation procedings in March 1947. The respondent testified that he reshipped in France to another vessel owned by the same line at the direction of the owner of the line. He claims that when he departed in March 1947 he maintained his residence in the United States as indicated by his retention of his living quarters in the United States where he left much of his personal effects.

1

There appear to be no court cases directly in point. Those court cases which held that residence for the purpose of section 249 of the Immigration and Nationality Act was broken involve a departure under an order of deportation, such departure being regarded as. having executed the order and warrant of deportation.""

There have been some administrative decisions which have dealt' indirectly with the problem. In Matter of P, 8 I. & N. Dec. 167, the alien alleged entry in the United States in 1920 and continuous

1

1 Section 101 (a) (33) of the Immigration and Nationality Act, 8 U.S.C. 1101 (a) (33).

Mrvica v. Esperdy, 376 U.S. 560, 11 L.ed. 2d 911; Chong v. Esperdy, 191 F. Supp. 935 (S.D.N.Y., 1961); Sit Jay Sing v. Nice, 182 F. Supp. 292 (D.C., Cal. 1960) aff'd. 287 F.2d 561.

1

residence since that time. Evidence was presented to establish that claim and also establish that he had been absent from the United States for brief periods on two occasions, in August 1922 and again in 1940. The departure in 1922 was as the result of exclusion proceedings. It was held that an alien who has been absent from the United States at any time since the entry upon which his application is based may be found to have resided continuously in the United States since the date of his original entry if his absence was temporary and his principal actual dwelling place in fact remained in the United States during the entire period of his absence. It was further held that a departure from the United States as a result of exclusion or expulsion proceedings breaks the continuity of residence for the purpose of section 249, regardless of the period of time the alien is outside the United States after such departure. The underlined portion must be read in conjunction with the next sentence which indicates that the applicant's continuous residence in the United States was broken on August 24, 1922 when he was excluded and deported. Thus the holding in this case is consistent with the holding of the Supreme Court in Mrvica v. Esperdy, 376 U.S. 560.3

Although the residence since the critical date must be continuous, the statute does not require actual physical presence in the United States during the entire period. Temporary absence, without abandonment of residence in the United States, will not preclude establishment of the required residence. All the statute requires is that the applicant "has had his residence in the United States continuously since such entry." "Residence" is defined as "the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent."

The Service suggests that the record does not clearly show whether or not the respondent was accorded the privilege of voluntary departure or left under an outstanding deportation order. A reading of the evidence clearly shows that it is conceded that he left under an order of voluntary departure. In any event, if the respondent had in fact been deported, the Service would have introduced evidence of such deportation into the record and if they should discover such evidence, it may properly be made the subject of a motion to reopen or reconsider.

}

It is concluded that the respondent has established continuous residence in the United States since prior to June 28, 1940. His de

́3 Matter of P—, 8 I. & N. Dec. 167, was cited with approval in Matter of R—, 8 I. & N. Dec. 598, 599.

1.

'Gordon and Rosenfield, Immigration Law and Procedure 737.

parture in 1947 was not the result of exclusion or expulsion proceedings but was voluntary. We are unable to distinguish between a voluntary departure prior to the institution of deportation proceedings and a voluntary departure subsequent to the institution of deportation proceedings. The legal effect remains the same. The respondent has established that his absence was temporary. He is not a member of the excludable classes enumerated in section 249, is not ineligible to citizenship and is a person of good moral character. He has established eligibility for the discretionary relief available under section 249 of the Immigration and Nationality Act. The order of the special inquiry officer will be affirmed.

ORDER: It is ordered that the order of the special inquiry officer dated September 15, 1964 granting the application for adjustment of status under section 249 of the Immigration and Nationality Act be affirmed.

It is further ordered that the appeal by the trial attorney from such decision of the special inquiry officer be and the same is hereby dismissed.

The parent of a minor United States citizen is ineligible for preference quota classification under section 203(a)(2), Immigration and Nationality Act, as amended. [Reaffirmed: 360 F.2d 304 (1966)].

CHARGE ORe l'ut alt på home

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

The case comes forward on appeal from the order of the special inquiry officer dated November 17, 1964, denying the application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, granting voluntary departure in lieu of deportation with the further order that if the respondent failed to depart when and as required, he be deported to Lebanon on the charge contained in the order to show cause.

The record relates to a native and citizen of Lebanon, 30 years old, male, who last entered the United States at the port of New York on January 31, 1956. He was then admitted as a nonimmigrant student, authorized to remain in such status until January 5, 1963. The respondent was granted until February 10, 1963, within which to effect voluntary departure but remained thereafter without authority. Deportability on the charge stated in the order to show cause is established.

The case was previously before us on appeal from an order of the special inquiry officer entered on March 27, 1963, granting voluntary departure with the alternate order that if he failed to depart as required, he be deported to Lebanon. The appeal was dismissed. On August 7, 1964, we ordered proceedings reopened for the purpose of considering the respondent's request for adjustment of status under section 245 of the Immigration and Nationality Act, as amended, or for such other relief as might be appropriate.

The record shows that the respondent on September 5, 1963, in the Parish of East Baton Rouge, Louisiana married Shirley Claudia O'Hara Mulligan, a native-born citizen of the United States. On April 19, 1964, at Omaha, Nebraska, the respondent's wife gave birth to a citizen child. The day after the marriage she completed a visa petition to accord the respondent nonquota status. In her sworn statement of April 20, 1964, the wife asked that the visa petition be revoked and on May 19, 1964, the District Director at New Orleans denied the visa petition. On May 29, 1964, the respondent filed a petition for separation a mensa et thoro in the Family Court For The Parish Of East Baton Rouge, Louisiana in which respondent asserted under Louisiana law he was the legal father of the child and was awarded the temporary care, custody and control of the minor child (Ex. R-4). (A final decree in this matter was rendered on September 9, 1964.) There is some evidence in the file of a sham marriage for the purpose of avoiding deportation. There is also evidence that the respondent is not the natural father of the child (Ex. R-4; Ex. R-6, p. 5; Ex. R-7). However, we need not at this point consider whether the relief of section 245 of the Act is warranted as a matter of discretion. For the purpose of this discussion we shall also assume, without conceding, that under the laws of the State of Louisiana the respondent is recognized as the legal father of the child, Darlene Rachael, born in Nebraska, despite his admission that he is not the biological or natural father of the child and despite the statement by the mother that there was never any intercourse between herself and the respondent.

The critical question in the case is whether the respondent can meet the requirement of section 245 (a) (3) of the Immigration and Nationality Act (8 U.S.C. 1255 (a) (3)) that an immigrant visa be immediately available to the alien. Section 203 (a) (2) of the Immigration and Nationality Act (8 U.S.C. 1153 (a) (2)) provides:

(2) The next 30 per centum of the quota for each quota area for such year, plus any portion of such quota not required for the issuance of immigrant visas to the classes specified in paragraphs (1) and (3), shall be made available for the issuance of immigrant visas to qualified quota immigrants who are the parents of citizens of the United States, such citizens being at least twenty-one years of age or who are the unmarried sons or daughters of citizens of the United States. (Emphasis supplied.)

Counsel construes the underlined portion of this section as though the language thereof reads:

⚫ to qualified quota immigrants who are the parents of citizens of the United States, such citizens being (a) at least twenty-one years of age; or (b) who are the parents of unmarried sons or daughters of citizens of the United States.