Matter of Winkens (Board decision, September 9, 1975)

Plain-English summary

A German citizen had gained permanent residence as a child through his parents. They moved back to Germany when he was 14 and took him with them, despite his wish to stay. He later returned to the United States as a visitor and remained after his authorized stay. The Board held that his parents' abandonment of permanent residence was imputed to him while he was under their custody and control. It sustained the Service's appeal from the termination of proceedings and remanded for consideration of his adjustment application.

Decision snapshot

• Cited authorities: INA §§ 101(a)(13), 241(a)(2), and 245
• Outcome: Service appeal sustained; proceedings remanded for adjustment consideration.
• Key point: A minor who obtained resident status through his parents lost it when they abandoned their residence and took him abroad.

Full text (BIA official public release)

Interim Decision #2429

MATTER OF WINKENS

In Deportation Proceedings

A-11953287
Decided by Board September 9, 1975

Respondent gained lawful permanent resident status through his parents upon admission to the United States in 1959 when he was 4 years of age. In 1968, when he was 14 years of age, his parents abandoned their residence in this country and returned to Germany, taking him with them. The abandonment of their permanent resident status is imputed to respondent, who was subject to their custody and control. Hence, he cannot be considered a lawful permanent resident returning from a temporary visit abroad upon his return to this country on December 19, 1972; at that time he made an "entry" within the meaning of section 101(a)(13) of the Immigration and Nationality Act. [Matter of Bauer, 10 I. & N. Dec. 304, distinguished.] CHARGE: Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor— remained longer.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Douglas P. Haffer, Esquire
Paul C. Vincent
San Francisco Neighborhood Legal
Appellate Trial Attorney
Assistance Foundation
2701 Folsom Street
Bernard J. Hornbach
San Francisco, California 94110
Trial Attorney

This is an appeal by the Trial Attorney, on behalf of the Immigration and Naturalization Service, from the immigration judge's order ter- minating proceedings. The appeal will be sustained, and the proceedings remanded for consideration of the respondent's application for adjust- ment of status pursuant to section 245 of the Act. The respondent is a native and citizen of Germany, who was admitted to the United States as an immigrant on September 25, 1959, at which time he was 4 years of age. He remained in the United States with his parents until 1968, when they decided to move back to Germany and took him with them. At that time he was 14 years of age. He testified that he had not wanted to leave but that " . . .there was no way I could stay by myself' (Tr. p. 5). He returned to the United States, at the age of 18, on December 19, 1972, classified as a nonimmigrant visitor, authorized to remain until March 15, 1973. He has stayed thereafter and is charged with overstaying as a nonimmigrant.
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Interim Decision #2429
The immigration judge terminated the proceedings, in a decision dated October 24, 1974, in reliance upon our decision in Matter of Bauer, 10 I. & N. Dec. 304 (BIA 1963). Matter of Bauer, supra, does not govern this case. Unlike Bauer's parents, this respondent's parents did not retain their United States residence when they left this country in 1968. The abandonment of their lawful permanent resident status is imputed to the respondent, who was subject to their custody and control. He had gained lawful permanent resident status through them, and he lost it when they abandoned their residence and took him with them. The respondent made an "entry;' when he arrived in the United States on December 19, 1972, and, although once lawfully admitted for permanent residence, he cannot be considered an alien lawfully admitted for per- manent residence who is returning from a temporary visit abroad.
¹ ORDER: The appeal is sustained and the record remanded for further proceedings consistent with the above decision.

¹ Board member Irving A. Appleman abstained from consideration of this case.

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