A-2064750
Decided by the Board August 25, 1953
Advances permission to return to unrelinquished domicile — Not required by lawful permanent resident of Puerto Rico seeking temporary admission to continental United States — Nonimmigrant — Ineligible to citizenship — Inadmissibility by reason of, not bar to readmission to Puerto Rico.
(1) The exercise of advance permission to return to an unrelinquished domicile pursuant to section 212 (c) of the Immigration and Nationality Act is not required in the case of a lawful permanent resident of Puerto Rico who is ineligible to citizenship because of the filing as a neutral alien for relief from military service and who seeks to enter the continental United States temporarily for business. Such person has the same status as a nonimmigrant and the ground of inadmissibility found in section 212 (a) (22) is limited to immigrants.
(2) A lawful permanent resident of Puerto Rico who is ineligible to citizenship would not be excludable by reason of section 212 (d) (7) of the Immigration and Nationality Act when he attempts to return to Puerto Rico following a temporary visit to continental United States because at that time he will be an alien leaving the continental United States rather than an alien departing from one of the territories as specified in that section.
BEFORE THE BOARD
IN PROCEEDINGS UNDER SECTION 212 (c) OF THE IMMIGRATION AND NATIONALITY ACT FOR ADVANCE PERMISSION TO RETURN TO AN UNRELINQUISHED DOMICILE
Discussion: This case is before us on appeal from a decision dated June 10, 1953 of the district director of the Service at Miami, Fla., denying the alien's application.
The appellant was born in Spain on August 21, 1920. He was lawfully admitted for permanent residence at San Juan, P.R. on February 25, 1935. On June 8, 1943, he filed an application as a neutral alien for relief from military service and thereby became ineligible for United States citizenship. The application contains the statement that he intends to depart from Puerto Rico for the purpose of proceeding temporarily to New York City in order to buy dry goods. In support of his appeal, the alien submitted a letter in which he states that it is not his intention to reside in continental United States; that he desires to make a business trip pursuant to his official duties as general manager and purchase for a long established commercial concern; that because of his long years of experience, there is no other member of the firm or employee who could be substituted in his place; and that his wife and two children are citizens of the United States.
Section 212 (a) (22) of the Immigration and Nationality Act provides for the exclusion of "aliens who are ineligible to citizenship, except aliens seeking to enter as nonimmigrants; * * *." Section 212 (d) (7) of that act provides, in part, as follows:
(7) The provisions of subsection (a) of this section, except paragraphs (20), (21), and (26), shall be applicable to any alien who shall leave Hawaii, Alaska, Guam, Puerto Rico, or the Virgin Islands of the United States, and who seeks to enter the continental United States or any other place under the jurisdiction of the United States: * * *.
If the appellant were seeking to enter continental United States to take up permanent residence, he would be inadmissible under the provisions of law mentioned above unless we should grant his application under section 212 (c). However, it is clear from the appellant's assertions that he does not desire to enter continental United States for permanent residence but that he actually seeks to enter temporarily as a nonimmigrant for business. Under section 212 (a) (22) aliens seeking to enter as nonimmigrants are not excludable merely because they are aliens ineligible to citizenship.
The only remaining question with which we are confronted is whether there is any provision in the statute which would preclude the admission of the appellant to continental United States as a nonimmigrant. Section 101 (a) (15) (B) defines as a nonimmigrant an alien " having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure." The emphasized language is also a requirement under section 101 (a) (15) (F) relating to nonimmigrant students and under section 101 (a) (15) (H) relating to "temporary worker" nonimmigrants. That requirement does not, however, appear with respect to the other nonimmigrant classes set forth in section 101 (a) (15). Obviously this requirement was intended to apply to the vast majority of persons who would be seeking temporary entry for business or pleasure and whose return to their foreign country of residence was intended to be thus assured. If we hold that the appellant cannot be considered a nonimmigrant because he has a residence in Puerto Rico rather than in a foreign country, it would place in a more advantageous position an alien resident of a foreign country seeking to enter as a nonimmigrant than an alien resident of a territory seeking to enter continental United States as a nonimmigrant. The appellant has a residence in Puerto Rico which he has no intention of abandoning and there appears to be no doubt that, if he is admitted to the United States temporarily as a nonimmigrant, his return to Puerto Rico can be enforced. Under the circumstances mentioned, we believe that the statute may be reasonably construed as sufficiently broad to encompass the appellant's case within the provisions of section 101 (a) (15) (B).
Not only do we find nothing which would preclude treating the appellant as a nonimmigrant, but we find also specific indications that Congress was aware that section 212 (d) (7) would be applicable to certain aliens seeking to enter continental United States as nonimmigrants from United States Territories. For example, it was provided therein that the provisions of section 212 (a) should be applicable to aliens departing from the Territories for continental United States except the provisions of paragraphs (20), (21), and (26) thereof, and paragraph (26), by its specific terms, relates only to nonimmigrants. Another indication is the provision in section 212 (d) (7) relating to regulations for the temporary admission to the United States of persons admitted to Hawaii under the last sentence of section 8 (a) (1) of the act of March 24, 1934, as amended.
We have also considered the question of whether the alien would be inadmissible to Puerto Rico at such time as he makes application for readmission there following his return from his temporary visit to continental United States. Section 212 (d) (7) relates to an alien (1) who shall leave Hawaii, Alaska, Guam, Puerto Rico, or the Virgin Islands of the United States, and (2) who seeks to enter the continental United States or any other place under the jurisdiction of the United States. We do not consider that the appellant would be excludable by reason of this provision when he attempts to return to Puerto Rico following his temporary visit to continental United States because at that time he will be an alien leaving the continental United States rather than an alien departing from one of the territories as specified in this statutory provision.
Although the district director of the Service denied the application on the ground that the appellant was not proceeding abroad, we are inclined to take the position that section 212 (c) is sufficiently broad to comprehend the case of a permanent resident of a Territory who seeks to enter continental United States for permanent residence. However, it is unnecessary for us to determine that question at this time in view of the conclusion we have reached in the appellant's case. Accordingly, the following order will be entered.
Order: It is ordered that the order of the district director of the Service at Miami, Fla., dated June 10, 1953, be amended to show that the application was denied for the reason that such an application is not required in the case of an alien ineligible to citizenship who has been lawfully admitted to Puerto Rico for permanent residence and who desires to enter continental United States as a nonimmigrant for a temporary period and thereafter return to Puerto Rico.
It is further ordered that the appeal be dismissed.