56156/465
Decided by the Board June 27, 1944
Seventh Proviso Relief — Section 3 of the act of February 5, 1917 — Unrelinquished domicile of 7 years — Evidence.
1. An alien, inadmissible on the ground of illiteracy, who seeks advance relief therefor, under the authority contained in the Seventh Proviso to section 3 of the Act of February 5, 1917, must establish he is returning to an unrelinquished domicile of 7 consecutive years in the United States.
2. The evidence shows the alien retained his "animus manendi" with respect to the domicile he acquired by an entry here in October 1935, and that he maintained such domicile here since then. Under the circumstances, his enforced departure in November 1940 did not have the effect of breaking the continuity of such domicile. There was no formal exclusion or deportation in this case before acquisition of 7 years of domicile.
INADMISSIBLE:
Act of 1917 — Unable to read.
BEFORE THE BOARD
Discussion: The applicant is a native and citizen of Mexico, aged 50. He first entered the United States with his wife and children during May of 1924. During November or December of 1934, they returned to Mexico as repatriates for permanent residence.
Approximately 10 months later, on October 26, 1935, they reentered the United States illegally. During June of 1940 the applicant, together with his mother and his Mexican-born children, was apprehended by the Immigration and Naturalization Service and permitted to depart in lieu of deportation on November 12, 1940. The applicant's wife died in 1937.
Because of inability to read, the applicant desires that his reentry into the United States be authorized pursuant to the discretion contained in the seventh proviso to section 3 of the Immigration Act of February 5, 1917, as amended, which provides as follows:
That aliens returning after temporary absence to an unrelinquished United States domicile of 7 consecutive years may be admitted in the discretion of the Attorney General and under such conditions as he may prescribe.
The Immigration and Naturalization Service takes the position that the applicant does not possess a domicile of 7 consecutive years as required by the aforesaid proviso in that while he did not last depart from the United States of his own volition on October 12, 1940, since 3 years have elapsed, the record fails to establish that he seeks to return to an unrelinquished domicile of 7 consecutive years after a temporary absence.
The established facts show that on the occasion of the applicant's enforced departure on October 12, 1940, after a residence beginning October 26, 1935, he was accompanied by his mother and his three Mexican-born children. One of these children was readmitted to the United States for permanent residence on December 18, 1940. Also, on that occasion, four other minor children, all American born, remained on the farm of his employer, Mr. C---- T---- C----, at Kingsville, Tex.
Mr. C. testified that the applicant's son, now aged 23, employed by him, had stated that his father, since his enforced departure, had been refused an immigration visa because of illiteracy and that in an endeavor to assist his father in that respect he obtained letters from former employers in Kingsville and Robstown, Tex.
The son was also interviewed recently and stated that two older brothers, American born, reside in this country and that another brother and sister are with his father in Mexico. He stated that he had gone to the American Consul with his father for the purpose of attempting to secure an immigration visa for the latter; that later, during 1941, another brother took the same course of action.
The applicant himself made a statement on April 26, 1944 to the effect that his children, A---- and R----, who were born in Mexico and N---- and S----, who were born in the United States, were residing with him in Mexico; that M---- and two other children were in Kingsville, and two other children elsewhere in Texas.
The applicant also stated that he resided in the United States from May 8, 1924 to December of 1934 when he repatriated to Mexico for the purpose of remaining there permanently; that, however, he reentered this country on October 26, 1935 accompanied by his wife and children and that after apprehension by the Immigration and Naturalization Service he was permitted voluntary departure in November of 1940, but the two youngest children remained in this country. Mr. C----, the applicant, stated definitely that on the occasion of his departure in November 1940 his purpose was to secure an immigration visa for permanent residence in the United States.
Pursuant to such purpose the applicant made application for an immigration visa which was denied to him because of his inability to read. His daughters A---- and R---- also visited the Consulate in connection with the matter several times, the last time about 1 year ago, without success, for the same reason. It appears that he is still unable to read. He stated that it is his purpose to have the remaining members of his family return with him to this country. His son also desires his return here.
It appears established, therefore, that the applicant has maintained a domicile in this country since his entry on October 26, 1935 and it is immaterial in the exercise of the discretion sought that such entry was not effected in a legal manner. His enforced departure in November of 1940 did not have the effect of breaking the continuity of his domicile and, in this connection, it should be borne in mind that this case did not involve a formal exclusion or deportation before acquisition of 7 years' domicile in this country.
Matter of S----, 55915/701 (January 28, 1944).
The evidence clearly establishes that the applicant retained the animus manendi with respect to the domicile he acquired here by reason of his entry on October 26, 1935. His residence in Mexico since November of 1940, when his enforced departure occurred, has been a constrained one due to his inability because of illiteracy after repeated attempts to secure an immigration visa. Such absence, therefore, had no effect on his domicile in this country. We do not lose sight of the fact that continued residence in one place may, although not necessarily, be considered strong evidence, or even a controlling circumstance, in determining the question of domicile, but residence alone, however long continued, even for a period of years, will not effect the change of domicile in the absence of the requisite intent. For example, it has been held where a husband and wife establish a domicile in Oregon and afterward reside in California for 3 years, until the husband's death, and the wife continued residing there for 9 years, until her death, but neither of them intended to change their domicile from Oregon, it was not so changed within the laws affecting wills. It has also been held that a temporary residence for the purpose of transacting business or for the purpose and sake of health is not sufficient to constitute a domicile.
Pickering v. Winch, 48 Oregon 500, 87 P. 763.
U.S. v. Luria, 231 U.S. 9.
Palmer v. Hampton, 182 Mass. 511, 65 N.E. 817.
Milligan v. Fortsen, 54 S.E. 915.
People v. Cannell, 28 Ill. A. 285.
In the final analysis, the issue in the case before us is simply one of fact. No fact in the record indicates that Mr. C — intended to relinquish the domicile he acquired in the United States on October 26, 1935. On the other hand, all of the unrefuted evidence presented establishes beyond question his intention at the time of the enforced departure was to return to the United States to rejoin his children who were left here and to return with the other children who departed to Mexico with him and that since that time he, and other members of the family, continued efforts to have issued to him an immigration visa. These efforts were thwarted only because of his lack of qualifications therefor, namely, inability to read.
On the basis of the evidence presented, we must conclude that the applicant is seeking to return to a United States domicile of 7 consecutive years after a temporary absence and therefore the exercise of the discretion in his behalf is proper and under the circumstances justified.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the applicant is an alien, a native and citizen of Mexico;
(2) That the applicant first entered the United States on May 8, 1924 and returned to Mexico during December 1934 to remain permanently;
(3) That the applicant returned to the United States on October 25, 1935, accompanied by his wife and children, without being in possession of the required documents;
(4) That upon apprehension by the Immigration and Naturalization Service, he, with certain other alien members of his family, who were also here illegally, was permitted to depart voluntarily to Mexico in November of 1940;
(5) That on the occasion of such enforced departure the applicant's purpose was to secure an immigration visa to return to the United States for permanent residence to join other members of the family who were citizens of this country and who remained here;
(6) That the applicant, as well as other members of the family, made continued efforts to secure an immigration visa for him without success, due to his inability to qualify therefor because of inability to read.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the seventh proviso to section 3 of the Immigration Act of 1917, the alien has established the necessary prerequisite for the exercise of that discretion in his behalf.Order: It is ordered that if the alien applies for entry into the United States within 6 months from the date hereof, he be admitted if otherwise admissible than as one unable to read, pursuant to the authority contained in the seventh proviso to section 3 of the Immigration Act of February 5, 1917, as amended.