7033/142
Decided by the Board January 29, 1954
Permission to return to unrelinquished domicile — Section 212 (c) of the Immigration and Nationality Act — Not to be used where alien is abroad.
A claim to unrelinquished domicile in the United States by an alien abroad since 1933 who is seeking to return to this country should be submitted to the United States consul abroad for consideration as to the issuance of a visa as a returning resident alien. Application for advance waiver under section 212 (c) of the Immigration and Nationality Act is not appropriate in such a case.
BEFORE THE BOARD
Discussion: This is an appeal from the decision of the District Director, Seattle denying the alien's application for the advance exercise of discretionary relief under section 212 (c) of the Immigration and Nationality Act.
The applicant is a 65-year-old widowed female, a native and citizen of China, who was originally admitted to the United States at Seattle, Wash., on August 31, 1922, as a wife of a United States citizen. In 1933 she returned to China with her husband and children. They all returned to the United States except the applicant who is now in Hong Kong. Her husband died in this country in 1939. She has 9 children, 8 of whom are citizens and residents of the United States. The other child was born in China and now resides there.
In her application the alien alleges that she has always intended to return to the United States but has been unable to do so because of lack of funds. She claims that she has never relinquished her domicile in this country and now seeks permission to return here.
Considering all the circumstances in this case, we feel that this is not the type of case which should be disposed of on an application for the advance exercise of relief under section 212 (c) of the Immigration and Nationality Act. In so doing we do not pass upon the merits of the applicant's claim that she has an unrelinquished domicile in the United States. Since she is now abroad we believe that this claim may be presented more appropriately to a United States consul abroad for consideration as to the issuance of a visa to her as a returning resident alien. The appeal will therefore be dismissed without prejudice to the applicant's right to take such further action with respect to her claim as a returning resident as may be deemed appropriate.
Order: It is ordered that the appeal be and the same hereby is dismissed.