A-8473516
Decided by Board August 31, 1956
Guam — Permanent resident status acquired pursuant to 8 CFR 4.2 (i) — Not interrupted by temporary employment ashore by employer between sailings on different vessels of same employer — Waiver pursuant to section 211 (b), Immigration and Nationality Act, and 8 CFR 211.3.
(1) A citizen of the Trust Islands who acquired the status of a lawful permanent resident of the United States pursuant to 8 CFR 4.2 (i), who is now an applicant for admission to Guam after a temporary absence therefrom and is unable to present necessary documents due to emergent conditions over which he had no control will be granted a documentary waiver and readmitted for permanent residence under section 211 (b) of the Immigration and Nationality Act, supplemented by 8 CFR 211.3.
(2) An alien who is a lawful resident of the United States is not necessarily deprived of the protection of the blanket documentary waiver accorded in 8 CFR 211.2 (c) by reason of two weeks' employment ashore on Saipan when it is shown that he has at all times since 1951 been employed by the same company as a crewman, mechanic, and ship's engineer, and that his employment ashore by that company was between sailings on his employer's vessels.
EXCLUDED:
Act of 1952 — Section 212 (a) (20) [ 8 U.S.C. 1182 (a) (20)] — Immigrant not in possession of an immigrant visa.
BEFORE THE BOARD
Discussion: The appellant is a single male alien, 27 years of age, a native of the Palau Islands and a citizen of the Trust Territory of the Pacific Islands. He last arrived in the United States at Agana, Guam, on March 20, 1956, via Transocean Airlines from Truk Islands and applied for readmission as a returning permanent resident. At that time he was in possession of an immigrant identification card, Form I-151, but did not have a valid visa, passport, reentry permit or other document in lieu thereof. He was excluded by the special inquiry officer for the reason set forth above, and appeals to this Board from that decision.
The appellant first arrived in the United States at Guam on September 2, 1951. Thereafter, by continuing to reside on Guam until after December 24, 1952, he became a permanent resident of the United States pursuant to 8 CFR 4.2 (i). Since 1951 appellant has been at all times employed by the Micronesia Metal and Equipment Company, an American corporation hereinafter referred to as "Micro." Micro is engaged in the recovery and sale of scrap metal from the islands of the Trust Territory. Appellant has been employed by this company in several capacities as a crewman, mechanic, and ship's engineer. The manager and vice-president of the company, appellant's employer, attended his [appellant's] hearing and testified in his behalf.
8 CFR 4.2 Presumption of lawful admission. An alien of any of the following-described classes shall be presumed to have been lawfully admitted for permanent residence within the meaning of the Immigration and Nationality Act (even though no record of his admission can be found, except as otherwise provided in this part) unless the alien abandonded his status as a lawful permanent resident, or lost such status by operation of law; at some time subsequent to such admission: * * * (i) Citizens of the Trust Territory of the Pacific Islands who entered Guam prior to December 24, 1952. An alien who establishes that while a citizen of the Trust Territory of the Pacific Islands he entered Guam prior to December 24, 1952, by records, such as Service records subsequent to June 15, 1952, records of the Guamanian Immigration Service, records of the Navy or Air Force, or records of contractors of those agencies, and was residing in Guam on that date.
We will not restate the evidence as to appellant's various comings and goings, as that has been done by the special inquiry officer. It is our opinion that the circumstances reflected in this record justify readmission of the alien to the United States under section 211 (b) of the Immigration and Nationality Act.
The Immigration and Naturalization Service did not set up an office for the enforcement of the immigration laws in Guam until June 1952. Before that time the control of immigration matters in the island was under the Department of the Navy and, following passage of the Organic Act of Guam in 1950, control was vested in the governor of Guam and immigration officers appointed by him. We are told that a citizen of the Trust Territory in possession of a permanent residence card, Form I-151, was permitted to leave and return to Guam without other documents.
Appellant made many trips in and out of Guam, and he did not have any difficulty until approximately December 1955. The incidents giving rise to the present proceedings are as follows. Appellant left Guam in March 1955, on a navy plane to Saipan and at Saipan signed on the M/V Vigilantibus, a vessel belonging to Micro. He sailed on the Vigilantibus for approximately 7 months between Saipan, Japan, Guam, and other places in that area. During November 1955, he was returned by navy plane to Guam for the purpose of obtaining a Coast Guard pass. He obtained this pass, and returned to Saipan as a passenger on the SS. Hope to rejoin the Vigilantibus as a crewman. Shortly after his return he and several other crew members were discharged by the captain of the Vigilantibus on Saipan. The cause of the discharge is not revealed by the record. Appellant worked about 2 weeks ashore on Saipan, still for Micro. He was then signed on the SS. Great Oaks, another vessel owned by Micro, and returned aboard this vessel for Guam. At that time he was admitted without documents, other than his Coast Guard pass and his Form I-151.
8 CFR 211.2 Immigrants not required to present visas or passports. Immigrants of the following-described classes applying for admission to the United States need not present visas or passports: * * * (c) Aliens of the following-described classes who have been lawfully admitted for permanent residence and who are returning after a temporary absence: * * * (3) An alien who departed from the United States as a crewman on a vessel or aircraft, who is returning as a passenger or crewman, provided his stay abroad was solely in pursuit of his calling as a crewman, and who presents a Form I-151 duly issued to him or satisfactorily establishes that it has been lost or destroyed since he last departed from the United States.
On December 27, 1955, respondent applied for a reentry permit in order that he might depart from the United States to work on the island of Truk for Micro. The reentry permit did not arrive, and, an emergency having arisen on Truk, Micro sent appellant on January 2, 1956, to Truk by plane without his yet having obtained the reentry permit. Appellant's employer testified that a vessel was approaching Truk with a loading of scrap offshore, the first time such a loading had been accomplished on Truk; that the company had no mechanic to keep the loading equipment on shore in operation, and desired to send appellant to Truk for that purpose. Anticipating no difficulty in appellant's being granted a reentry permit, and having discussed the matter at length with the Immigration Service in Guam, Micro sent appellant to Truk, intending to forward his reentry permit to him when it should be granted.
On February 23, 1956, appellant's application was denied on the ground that he was not a legal resident of the United States at the time he departed from Guam, in that he had not been lawfully admitted on November 28, 1955, when he returned to Guam on the steamship Great Oaks, as an immigrant not in possession of a valid visa or passport or other documents. It was found that because appellant worked for 2 weeks ashore for Micro, following his discharge from the M/V Vigilantibus, as related above, he forfeits the protection of the blanket waiver contained in 8 CFR 211.2 (c) (3) (footnote 2) as a crewman who is returning from a stay abroad which was solely in pursuit of his calling as a crewman.
Viewed realistically, appellant has at all times been employed by the same company, and his employment has been the same, as a mechanic and engineer. We consider it highly doubtful that his 2 weeks' employment ashore on Saipan could be considered to take him out of the protection of 8 CFR 4.2, in that it was all part of his employment by Micro. Whether his discharge from the M/V Vigilantibus was the result of his own actions or not, he was immediately given other employment by Micro, and returned to Guam on the SS. Great Oaks, which may have been the first available vessel returning from Saipan to Guam, although there is nothing in the record on this point.
At all times appellant was in possession of his permanent residence card, and from October 1955, he was in possession of a Coast Guard pass. Counsel represents that the opinion that these documents were all that was required of a Trust Territory native to support an entry into Guam, was held not only by the natives, but by many persons in the business community of Guam. It is true that appellant and his employer were warned by the Immigration Service on Guam that if he [appellant] departed for Truk in December 1955, he would not be permitted to return without a reentry permit. Neither he nor the company had any reason to anticipate that the reentry permit would not be forthcoming, and, as we have indicated, the ground for the denial of this document appears to be somewhat doubtful.
Appellant, an alien who has been lawfully admitted to the United States for permanent residence, is an applicant for admission after a temporary absence who was unable to present the necessary documents due to emergent conditions over which he had no control. It is our opinion that he should be granted a waiver of the document and admitted for permanent residence under section 211 (b) of the Immigration and Nationality Act, supplemented by 8 CFR 211.3, Authority to grant individual waivers. Order: It is ordered that the appellant be admitted to the United States under section 211 (b) of the Immigration and Nationality Act.
8 CFR 211.3 Authority to grant individual waivers. Any alien (including an alien crewman) who has been lawfully admitted to the United States for permanent residence and who is an applicant for admission to the United States after a temporary absence may be granted a visa and passport waiver or a visa waiver, and any alien (including an alien crewman) who is an applicant for admission to the United States as an immigrant may be granted a passport waiver by the regional commissioner prior to admission, at the time of admission, or after the alien's application for admission to the United States, or the district director having administrative jurisdiction over the port at which the alien applied for admission at the time of the alien's application for admission and prior to the submission of the case to a special inquiry officer, or the special inquiry officer in determining the case referred to him for further inquiry as provided in section 235 of the Act, upon a determination by the respective officers enumerated above that presentation of a visa, or passport, or both, is impracticable because of emergent circumstances over which the alien has no control and that undue hardship would result to such alien if such presentation is required: Provided, That during the time any case is pending before the Board a waiver under this section may be granted only by the Board.