Effect of Presidential Pardon on Aliens Who Left the Country to Avoid Military Service ( 1977 )

March 24, 1977
77-14 MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Effect of Presidential Pardon on Aliens Who Left
the Country to Avoid Military Service
You have asked us to examine the question of whether the Presi­
dent’s Proclamation and accompanying Executive order granting a
pardon to all those who violated the Military Selective Service Act
between August 4, 1964, and March 28, 1973, will have the effect of
removing the exclusion of aliens who departed from or remained out­
side the United States to avoid or evade training or service in the
Arm ed Forces. W e agree with the Immigration and Naturalization
Service (INS) that the pardon should be given that effect. We also
agree with INS that whether an alien seeking readmittance should be
regarded as a permanent resident alien returning from a temporary visit
abroad, is a question of fact that should be decided on a case-by-case
basis. But we believe that the terms of the statute and the case law
construing it permit more flexibility in making this determination than
the INS appears to suggest. Finally, we do not believe that an expatri­
ated citizen may properly be regarded as an alien lawfully admitted for
permanent residence.1
I. Applicability of the Pardon to 8 U.S.C. § 1182(a)(22)
An alien is excluded from entry into the United States if he or she is
within any of the classes enumerated in 8 U.S.C. § 1182(a).2 Among the
aliens excluded under this provision are:
Aliens who are ineligible to citizenship, except aliens seeking to
enter as nonimmigrants; or persons who have departed from or
w ho have remained outside the United States to avoid or evade
training or service in the armed forces in time or war or a period
declared by the President to be a national emergency, except aliens
1 T h e A tto rn ey G eneral subsequently approved these conclusions.
1 T h e Im m igration and Nationality A ct, 66 Stat. 166 (1952) codified at T itle 8, United
S tates C ode.
34
who were at the time of such departure nonimmigrant aliens and
who seek to reenter the United States as nonimmigrants. 8 U.S.C.
§ 1182(a)(22).
Proclamation 4483, issued by the President on January 21, 1977,
grants a pardon to everyone “who may have committed any offense
between August 4, 1964 and March 28, 1973 in violation of the Military
Selective Service A ct.” 13 Weekly Comp. Pres. Doc. 90. The Procla­
mation does not on its face purport to pardon the “offense” of depart­
ing from or remaining outside the United States to avoid or evade
military training or service in the Armed Forces and thereby to remove
the sanction of exclusion from the United States.
Executive Order 11967, also issued by the President on January 21,
1977, implements the pardon by, inter alia, instructing the Attorney
General to seek dismissal of indictments for offenses covered by the
pardon. Id. Section 3 of the order provides:
Any person who is or may be precluded from reentering the
United States under 8 U.S.C. 1182(a)(22) or under other law, by
reason of having committed or apparently committed any violation
of the Military Selective Service Act shall be permitted as any
other alien to reenter the United States.
The Executive order and the Proclamation together evince a clear
intent to remove the exclusion imposed by 8 U.S.C. § 1182(a)(22).
Because the Proclamation itself only mentions violations of the Military
Selective Service Act, and the Executive order by its terms seems to
lift the exclusion only where it would otherwise apply “by reason o f ’
an underlying violation of that Act, it would appear that the intent was
to lift the exclusion only derivatively by removing a consequence of
having violated the Military Selective Service Act. However, as ex­
plained below, 8 U.S.C. §1182(a)(22) was probably not intended to
apply to any conduct that is not also unlawful under the Selective
Service Act. The pardon therefore will have the same effect whether it
operates derivatively or directly—Le., by pardoning the separate “of­
fense” created by 8 U.S.C. § 1182(a)(22). See footnote 8, infra.
The present § 1182(a)(22) was first enacted in 1944 in an A ct that had
only one other section: the predecessor to the recently repealed 8
U.S.C. § 1481(a)(10),3 which provided that any person who was a
national o f the United States would lose his nationality by departing
from or remaining outside the jurisdiction of the United States in time
of war or during a national emergency for the purpose of avoiding or
evading training and service in the military forces of the United States.
58 Stat. 746. It is evident that the two sections of the 1944 Act merely
applied different sanctions for the same underlying conduct of leaving
J 8 U.S.C. § 1481(a)(10) was repealed by Pub. L. No. 94-412, 90 Stat. 1258 (1976).
35
or remaining outside the country to avoid military training or service.4
Indeed, by virtue of the interaction between the two provisions, a U.S.
national who left the country to avoid or evade training or service was
expatriated and, as an alien, would then be excluded from entry into the
United States. See, Jolley v. INS, 441 F.2d 1245, 1255 n. 17 (5th Cir.
1971).
T he Attorney General described the purpose of the expatriation
section of the bill in his letter to Senator Russell:
The files of this Department disclose that at the present time there
are many citizens of the United States who have left this country
for the purpose of escaping service in the armed forces. While such
persons are liable to prosecution for violation of the Selective
Service and Training A ct of 1940, if and when they return to this
country, it would seem proper that in addition they should lose
their United States citizenship. Persons who are unwilling to per­
form their duty to their country and abandon it during its time of
need are much less w orthy of citizenship than are persons who
become expatriated on any of the existing grounds. S. Rep. No.
1075, supra.
The Attorney General’s statement that persons subject to expatriation
under the bill would be “liable to prosecution for violation of the
Selective Service and Training Act of 1940” if and when they returned,
indicates that the expatriation provision was to apply where the under­
lying conduct also violated that Act. His description of the sanction of
expatriation as being “in addition” to criminal penalties for the conduct
further supports this view.5
The view that the expatriation section of the 1944 Act applied only
to conduct that gave rise to liability under the Selective Service and
Training A ct also is reflected in the Supreme Court’s opinion in Kenne­
dy v. Mendoza-Martinez, 372 U.S. 144 (1963), which held that the
expatriation provision was penal rather than regulatory in nature and
was therefore unconstitutional because it automatically deprived a citi­
zen o f his nationality without the procedural protections required in a
criminal trial. One of the factors the Court cited as ordinarily being
useful in determining whether a sanction is penal or regulatory—and
* In a letter dated February 16, 1944, to Senator Russell, Chairm an o f the Senate
C om m ittee on Im m igration, the A tto rn ey G eneral stated:
I invite y o u r attention to th e desirability o f enacting legislation w hich w ould
provide (1) for th e expatriation o f citizens o f the United States w ho in tim e o f w ar or
during a national emergency leav e the U nited States o r remain outside th ereo f for
the purpose o f evading service in- the arm ed forces o f the U nited States, and (2) for
the exclusion fro m the United States o f aliens who leave this country fo r the above-
m entioned purpose. S. Rep. N o. 1075, 78th C ong., 2d Sess., 2 (1944). [Emphasis
added].
5 T h e A tto rn ey G en eral’s description also indicates that the bill was intended to close a
gap in th e coverage o f existing crim inal provisions by imposing a sanction upon those
w h o had rem oved them selves beyond the crim inal jurisdiction o f the U nited States. See
90 C ong. Rec. 7628-29 (1944).
36
one that suggested that the expatriation provision was penal in nature—
was “whether the behavior to which it applies is already a crime.” Id.
at 168.® Justice Brennan explicitly stated in his concurring opinion that
it was obvious that the expatriation provision “does not reach any
conduct not otherwise made criminal by the selective service laws.” Id.
at 191 n. 5. Because the expatriation section and the section that was
the predecessor of the present 8 U.S.C. § 1182(a)(22) applied to the
same underlying conduct, it follows that the latter provision similarly
should be regarded as intended to apply only to conduct that also gives
rise to criminal liability under the Military Selective Service Act.7 In
our opinion, the President’s Proclamation of pardon of offenses arising
under the Military Selective Service Act may properly be given the
effect intended in Section 3 of Executive Order 11967 of lifting the
exclusion from the United States which may result from the same
conduct.
The leading case regarding the effect of a Presidential pardon is Ex
parte Garland, 71 U.S. 333 (1866). In 1865, Congress enacted a statute
providing that no person could be permitted to practice in Federal
court unless he took an oath asserting that he had never voluntarily
borne arms against the United States or given aid or comfort to enemies
of the United States. In holding that a Presidential pardon granted to a
Confederate sympathizer for all offenses committed during the Rebel­
lion had the effect of removing the bar imposed by the statute, the
Court stated:
A pardon reaches both the punishment prescribed for the offense N
and the guilt of the offender; and when the pardon is full, it
releases the punishment and blots out of existence the guilt, so that
• T h e C ourt did note that the elements o f the “crim e” created by the expatriation
provision and that created by the Selective T raining and Service A c t w ere not identical,
372 U.S. at 167 n. 21, but this observation appears to have been based on the conclusion
that the Im m igration and Nationality A ct contained an additional elem ent not found in
the o ther A c t—i.e„ departing from o r remaining outside the country for the purposes
declared to be unlawful. T he C ourt did not suggest that expatriation w ould occu r even if
the underlying conduct did not constitute a violation o f the Selective T raining and
Service A ct.
Also, the expatriation section, as reenacted in the Im m igration and N ationality Act,
provided that failure to com ply w ith any provision o f the com pulsory service law s o f the
United States raised the presum ption that a citizen departed o r rem ained outside the
country for the purpose of evading o r avoiding service. 8 U .S.C. § 1481(a)(10). This
underscores the nexus to crim inal conduct.
’ Section 11 o f the Selective T raining and Service A c t o f 1940, 54 Stat. 894, w hich
contained the crim inal provisions o f that A ct, is in all m aterial respects identical to the
principal provision defining offenses and penalties under current law. See 50 U.S.C. App.
§ 462(a). Thus, the present connection betw een the exclusion provision and the Selective
Service A c t appears to be as direct as it was in 1944.
37
in the eye of the law the offender is as innocent as if he had never
committed the offense. Id. at 380.®
See also, Knote v. United States, 95 U.S. 149, 153 (1877). The language
in E x parte Garland is now generally believed to be too sweeping. E.
Corwin, The President: Office and Powers, 1787-1957 (1957), at 166—
67; W. H. Humbert, The Pardoning Power of the President (1941), at
76-78. For example, the Court held in Carlesi v. New York, 233 U.S. 51
(1914), that a Presidential pardon of a Federal offense did not prevent a
State court from considering that offense for purposes of sentencing the
defendant under a second offender statute. The Court was careful to
note, however, that the N ew York statute did not purport to authorize
additional punishment for the pardoned offense, but only prescribed
penalties for the later offense taking into account the character of the
offender, including his past conduct. Id. at 57. In fact, E x parte Garland
may itself be viewed as a case in which the disability actually was
imposed as a penalty rather than as a regulation of the practice of law.
Humbert, supra, at 78 n. 95.® The President’s constitutional authority to
pardon offenses carries with it the power to release all penalties and
forfeitures that accrue from the offenses. Osborn v. United States, 91
U.S. 474 (1875); 36 Op. A. G. 193 (1930). Thus, whether a pardon
removes a particular disability depends on whether the statutory provi­
sion is thought to impose a penalty for an offense or merely to pre­
scribe a qualification for a Governm ent benefit. 31 Op. A. G. 225, 226-
27 (1918). See also 39 Op. A. G. 132, 134-35 (1938); 36 Op. A. G. 193
(1930); 22 Op. A. G. 36 (1898).
Many o f the grounds for exclusion provided by 8 U.S.C. § 1182(a)
could properly be regarded as establishing qualifications for entry,
rather than punishment for past acts, and as such they would presum­
ably be unaffected by a Presidential pardon. This, however, cannot be
said o f the ground for exclusion in 8 U.S.C. § 1182(a)(22). The compan­
ion provision for expatriation of a citizen who departed or remained
outside the country to avoid or evade military training or service was
specifically found to be penal rather than regulatory in character, in
Kennedy v. Mendoza-Martinez, supra, after an exhaustive consideration
of the language and legislative history of the 1944 Act and its predeces­
sors. The evidence of a punitive intent in the legislative history and
antecedents o f the 1944 Act apply equally to the corollary provision for
the exclusion of aliens now contained in 8 U.S.C. § 1182(a)(22). Similar­
ly, the various factors the Court identified as suggesting that the sanc-
* T h e four dissenters contended th a t the A c t was m erely intended to establish qualifica­
tions for the practice o f law before Federal courts. In their view , the pardon could
relieve the beneficiary from the penalty the law inflicted for his offense, but not from
m eeting ap p ro p riate tests o f fitness to engage in the practice o f a profession. 71 U.S. at
396-97.
• T his interpretation o f E x parte G arland is supported by the C o u rt’s alternative holding
th at the professional disqualification was intended by C ongress as punishm ent for past
acts and therefore w as unconstitutional as ex post facto legislation. 71 U.S. at 376-380.
38
tion of expatriation was punitive on its face also apply to the sanction of
exclusion of aliens who engage in the very same conduct. 372 U.S. at
168-69. Exclusion from the United States certainly involves an affirma­
tive restraint, and it is analogous to the devices of banishment and exile
that “have throughout history been used as punishment.” Id. at 168 n.
23. From the nature of the provision it seems evident that exclusion
may be imposed only upon a finding of scienter, see, e.g., Riva v.
Mitchell, 460 F.2d 1121 (3d Cir. 1972); Jolley v. INS, 441 F.2d 1245
(5th Cir. 1971), and its operation promotes the traditional aims of
punishment—retribution and deterrence. The other factors mentioned
by the Court are also satisfied here.
Because it appears that Congress has imposed the sanction of exclu­
sion as additional or alternative punishment for conduct that also vio­
lates the Military Selective Service Act, rather than as a regulatory
measure to establish the qualifications of aliens who enter the United
States, we agree with the conclusion of the INS that the President has
the constitutional power to lift that exclusion as a consequence of his
grant of a pardon for violations of the Military Selective Service A c t.10
II. Authority for Regarding an Expatriated Citizen as a Lawful
Permanent Resident.
INS suggests that a United States citizen who voluntarily relin­
quished his citizenship can be regarded as an alien lawfully admitted for
permanent residence. On its face, this seems to be a strained result, at
least as it applies to a native-born citizen. The term “lawfully admitted
for permanent residence” is defined under the Immigration and Nation­
ality Act to mean “the status of having been lawfully accorded the
privilege of residing permanently in the United States as an immigrant
in accordance with the immigration laws, such status not having
changed.” 8 U.S.C. § 1101(a)(20). A native-born citizen would never
have been accorded the privilege of residing permanently in the United
States “as an immigrant,” so it is difficult to see how he could be
thought to revert to the status of permanent resident alien by renounc­
ing his citizenship. A naturalized citizen presumably has been accorded
the privilege of residing permanently in the United States as an immi­
10 In our view , the clear punitive purpose o f 8 U.S.C. § 1182(a)(22) m ight well support
a conclusion that the section itself defines an offense that may be pardoned by the
President, w ithout reference to parallel provisions in the M ilitary Selective Service A ct.
In Kennedy v. Mendoza-Martinez, the C ourt stated that “C ongress has plainly em ployed
the sanction o f deprivation o f nationality as a punishm ent—/o r the offense o f leaving or
remaining outside the country to evade military service— w ithout affording the procedural
safeguards guaranteed by the Fifth and Sixth A m endm ents.” 372 U.S. 165-66 [emphasis
added]. L ong before the Suprem e C ourt’s decision in Kennedy v. Mendoza-Martinez,
A cting A ttorney G eneral John W. D avis advised the Secretary o f the N avy th at an
earlier version o f the expatriation statute created an ofTense and that the disabilities
imposed w ere therefore lifted by an unconditional pardon. 31 Op. A. G . 225, 231-32
(1918). T h e underlying “offense” o f departing from o r rem aining outside the U nited
States to avoid m ilitary service under 8 U.S.C. § 1182(a)(22) is the same, and it could
therefore be argued that the penalty o f exclusion can be lifted by a pardon intended to
have this result. But in view o f the conclusion reached in the text, w e need not decide
here w hether 8 U.S.C. § 1182(a)(22) itself states a pardonable offense.
39
grant at some point prior to his naturalization. But, by the terms of 8
U.S.C. § 1101(a)(20), an alien permitted to reside permanently in the
United States may possess that immigrant status only as long as the
status does not change. W hen a permanent resident alien becomes a
naturalized citizen, he loses his status as an alien altogether. Thus, the
language of 8 U.S.C. § 1101 (a)(20) does not appear to contemplate that
the initial permanent resident status can be resurrected once it has been
lost.
As the INS memorandum points out, the Board of Immigration
Appeals held in Matter o f Vielma-Ortiz, 11 I&N Dec. 414 (1965), that a
naturalized citizen who had been admitted for permanent residence
prior to naturalization reverted to the status of permanent resident alien
when he automatically lost his citizenship by voting in a foreign elec­
tion.11 The Board specifically noted that the expatriating act of voting
in a Mexican election “had nothing to do with the continuance of the
status as a lawful permanent resident of the United States,” Id. at 416,
presumably meaning that the individual’s act of voting in the particular
case did not manifest an intention to abandon his actual residence in the
United States.12
It is evident that the Board interpreted the phrase “such status not
having changed” in 8 U.S.C. § 1101(a)(20) to mean only that the alien
must not have abandoned his actual residency in the United States. We
do not believe that this construction is appropriate in light of subse­
quent developments. In Gooch v. Clark, 433 F.2d 74, 79 (9th Cir.
1970), the court held that “ the definition [in 8 U.S.C. § 1101 (a)(20)]
refers not to the actuality o f one’s residence but to one’s status under
the immigration laws” [emphasis in original]. The status involved is that
of an alien lawfully admitted for permanent residence. A person ceases
to be an alien altogether when he becomes a naturalized citizen, and his
status as an alien therefore does not remain unchanged as required by 8
U.S.C. § 1101(a)(20).13
It also should be noted that the Board’s decision in Matter o f Vielma-
Ortiz preceded the Supreme Court’s decision in Afroyim v. Rusk, 387
U.S. 253 (1967), which held that citizenship may be forfeited only
11 A b rief passage in Justice B rennan's concurring opinion in Kennedy v. Mendoza-
M artinez lends som e support to the result in Vielma-Ortiz. H e observed that the G o v e rn ­
m ent could argue th at a citizen w ho fled the country to avoid m ilitary service, “although
expatriated, is a resident alien subject to com pulsory m ilitary service.” 372 U.S. at 195 n.
7.
T h e evidence established that th e appellant obtained a v oter registration card and
voted in a M exican election primarily to further his business dealings there and that he
intended to retu rn to his family in th e U nited States on each occasion that he w ent to
M exico.
’’ T h e Suprem e C o u rt later stated in Saxbe v. Bustos, 419 U.S. 65, 72 (1975), that it
“ read the A c t as did the N inth C ircuit in the Gooch case to mean that the change in status
w hich C ongress had in mind was a change from an im m igrant lawfully adm itted for
perm anent residence to the status of a nonimmigrant pursuant to 8 U.S.C. § 1257” [empha­
sis in original]. T his passage only speaks o f tw o different statutes that an alien may
occupy. It does not suggest that a person m ight com e w ithin 8 U.S.C. § 1101(a)(20) if he
w as not even an alien for a period o f time.
40
though a voluntary act of relinquishment. The decision in Vielma-Ortiz
may have stemmed from a desire to soften the harsh impact of automat­
ic expatriation for voting in a foreign election. The decision in Afroyim
v. Rusk removes this pressure for a liberal construction of the statute;
the requirement that a person who has renounced his citizenship must
assume the position of an alien and apply anew for an immigrant visa or
permanent resident status is now but a necessary consequence of a
voluntary act. Also, as a practical matter, it would probably be rare
that a person who voluntarily renounced his citizenship,14 with all the
severing of ties that implies, would nevertheless be thought to have
retained a permanent residence in the United States to which he might
now be returning from a “temporary” visit abroad. See Part III, infra.
Therefore, little would probably be gained by regarding an expatriated
citizen as an alien lawfully admitted for permanent resident.
For the foregoing reasons, it is our opinion that the result in Vielma-
Ortiz should not be followed with respect to persons covered by the
pardon who have renounced their citizenship.15
III. Standard for Determining W hether an Alien is Returning from
a Temporary Visit Abroad.
We agree with the position of INS that the determination whether an
alien seeking to enter the United States is “an immigrant, lawfully
admitted for permanent residence, who is returning from a temporary
visit aboard” under 8 U.S.C. § 1101(a)(27)(A) should in general be
determined on a case-by-case basis. Judicial and administrative decisions
arising under this section have generally looked to the facts o f the
“ T he IN S m em orandum , at pp. 10-11, notes that those w ho have been effectively
expatriated either applied for and obtained naturalization in a foreign c o untry or form ally
renounced their citizenship. 8 U.S.C. §§ 1481(a) (1) and (6). A form al renunciation will
usually be unam biguous in regard to subjective intent to relinquish citizenship. See, e.g.,
Jolley v. IN S , 441 F.2d 1245 (5th Cir. 1971). But it appears that even an application for
and obtaining o f naturalization in a foreign country o r taking an oath o f allegiance to a
foreign c o untry will not be regarded as an effective act o f expatriation unless it is
accom panied by an intent to abandon United States citizenship. United States v. Matheson,
532 F.2d 808 (2d Cir. 1976); King v. Rogers, 463 F.2d 1188 (9th Cir. 1972).
“ Section 3 o f E xecutive O rder 11967 provides that any person precluded from reen ter­
ing the United States under 8 U.S.C. § 1182(a)(22) shall be perm itted “ as any o th er alien”
to reenter the United States. A n expatriate w h o left the country to avoid m ilitary service
o r training is barred from reentry under this section. H ow ever, because such an individu­
al could not be regarded as a returning resident alien, the provision for him to reen ter “as
any o ther alien” should be construed to mean that he m ust reenter in the same m anner as
an alien w h o no longer has the status o f an alien law fully adm itted for perm anent
residence. H e must therefore satisfy all entry requirem ents, including applicable quota
limitations.
41
particular case to determine whether a given absence was temporary.16
It would be a departure from the usual approach in this area to follow
Option A contained in the draft statement prepared by INS for the
A ttorney General. Under Option A, any alien covered by the pardon
who had been lawfully admitted for permanent residence would auto­
matically be regarded to be returning from a temporary visit abroad
and therefore eligible for a waiver o f documentation requirements
under 8 U.S.C. § 1181(b).
Option B proposed by IN S would require a case-by-case determina­
tion for each alien, and it further states that it “is likely that most aliens
in this category will be precluded by the length and circumstances of
their absence from qualifying as returning permanent residents.” This is
apparently based on INS’ conclusion (at p. 12 of Commissioner Chap­
man’s memorandum) that the rule established by the cases is that
lengthy absence without an explanation amounting to a legal excuse
results in loss of returning resident status. We believe INS takes too
narrow a view of the concept of a “temporary visit abroad,” especially
in placing determinative emphasis on the duration of the visit and
apparently attaching little significance to the intent of the alien.17
T he cases considering the question of what constitutes a temporary
visit abroad are not entirely consistent; the most important factor that
emerges from the cases, however, is whether the alien had a continuing
intent to return to the United States —animus revertendi. See, M atter o f
Kane, I&N, Interim Dec. #2371 (April 1, 1975), at 6-8.18 As stated in
the most frequently cited case in this area, “the intention of the depart­
ing immigrant must be to return within a period relatively short, fixed
16 8 U.S.C. § 1181(b) provides th a t the A ttorney G eneral m ay w aive the docum entary
requirem ent for returning resident im m igrants “ in such cases o r in such classes o f cases
and u n d e r such conditions as m ay be by regulations prescribed.” T he reference to
“classes o f cases" m ight suggest th a t a case-by-case determ ination is not absolutely
necessary. B ut the statute refers to classes o f “ returning resident im m igrants"; in ord er to
be included in such a class in the first place, an alien m ust be returning from a tem porary
visit abroad. See 8 U.S.C. § 1101(a)(27)(A). A n individualized determ ination w ould seem
to be required on this point.
17 A t one tim e, regulations im plem enting the w aiver o f the docum entary requirem ent in
8 U.S.C. § 1181(b) provided that a w aiver w ould be considered only if the tem porary
visit ab ro ad w as for 1 year or less. See, Tejeda v. INS, 346 F.2d 389, 391 (9th Cir. 1965).
T h e regulation w as am ended on M ay 7, 1969, 29 F ed. Reg. 6002, and it no longer
contains th e 1-year lim itation. See 8 C F R 242.7a. W aiver is now perm itted for tem porary
visits o f longer duration.
18 In this regard, it m ay be useful to consider a tem porary visit abroad as being in
c o ntradistinction to a perm anent visit. Cf. 8 U.S.C. § 1101(a)(31). V iew ed in this light,
reference to a tem p o rary visit m ay be only a label for the m ore probing question o f
w h e th e r th e alien has retained his essential ties to the United States o r abandoned them.
M any perm anent resident aliens w h o left the c o untry to avoid m ilitary service no doubt
retained clo ser personal ties to the U nited States than to the c o u n try to w hich they fled.
42
by some early event.” United States ex rel. Lesto v. Day, 21 F.2d 307,
308-09 (2d Cir. 1927).19
Other cases are to the same effect.20 For example, in Santos v. INS,
421 F.2d 1303 (9th Cir. 1970), the court held that a permanent resident
alien who left Guam after 12 years to seek other employment was not
returning from a temporary visit abroad when he sought entry in San
Francisco some 5 years later. The court noted the Special Inquiry
Officer’s finding that the alien had left with no definite intention either
of staying away permanently or of returning, but rather with a purpose
to let future events run their course. Thus, there was no evidence of
animus revertendi. Similarly, in United States ex rel. Alther v. McCand-
less, 46 F.2d 288, 290-91 (3d Cir. 1931), the court held that the mere
absence of an intent to remain abroad permanently was not sufficient if
there was no evidence of an affirmative intent to return to the United
States. It is important to note, however, that the court considered the
alien’s intent in determining whether his visit abroad was temporary
even though he had been out of the country for more than 8 years. See
also, Gamero v. INS, 367 F.2d 123 (9th Cir. 1966) (alien away 17 years
held to have abandoned any intent he may once have had to return to
the United States); United States ex rel. Polymeris v. Trudell, 49 F.2d
730, 732 (2d Cir. 1931) (absence of 7 years); Barrese v. Ryan, 203 F.
Supp. 880, 888-89 (D. Conn. 1962) (intent of alien controls where it can
be ascertained); Matter o f Montero, 14 I&N Dec. 399, 400 (1973). These
cases at least establish that the extent of the visit is not controlling
where the intent of the alien may reasonably be questioned. United
States ex rel Polymeris v. Trudell, supra, 49 F. 2d at 732; Matter o f
Kane, supra, at 6-7.
It is true that courts have cited factors in addition to the intent of the
alien in determining whether a given visit was temporary. Others con­
sidered have included the duration of the visit and whether the alien
has a residence, family ties, property holdings, employment, or business
in the United States. See, e.g., Alvarez v. District Director, INS, 539 F.
2d 1220, 1224-25 (9th Cir. 1976); Santos v. INS, supra; United States ex
rel. Lesto v. Day, supra; United States ex rel. Alther v. McCandless, supra;
M atter o f Castro, 14 I&N Dec. 412, 494 (1973). But it is not apparent
T h e c o u rt also held that m ere retention o f dom icile is insufficient, standing alone, to
make a visit tem porary. 21 F.2d at 308. T his conclusion seems sound, because a person
retains his p rio r dom icile until he affirm atively establishes a new one, even if he has no
intention o f returning to the place o f domicile. Restatem ent (Second) o f Conflict o f L aw s
§ 19.
" W e also find no requirem ent articulated in the cases that when an alien’s absence is
protracted he must have an explanation am ounting to a “legal excuse.” R ather, w hen a
stay is protracted, the courts appear to look for an explanation that w ould perm it a
conclusion th at the alien had the intent to return and that his visit w as therefore
“tem porary” despite its duration. T he State D epartm ent regulation providing th at a
protracted visit is not tem porary, unless it w as caused by reasons beyond the alien’s
control and for w hich he was not responsible, does not control here. T he applicable IN S
regulation only requires a “tem porary absence,” w ithout the additional lim itations con­
tained in the State D epartm ent regulation. See 8 C F R 242.7a.
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whether these factors are cited merely as objective manifestations of the
alien’s animus revertendi (or lack thereof), or whether they are meant to
have independent legal significance. For the most part, we think they
are primarily useful as indicia of the alien’s intent. See, M atter o f Kane,
supra, at 7-8. O f these additional factors, we are inclined to attach
substantive significance solely to the duration o f the stay abroad, if only
because the word temporary connotes an element of duration. C f,
Gamero v. INS, supra, 367 F. 2d at 127.21 The view that there are
ultimate durational limits on a “temporary visit” is evident in the
passage from United States ex rel. Lesto v. Day, quoted earlier, that “the
intention of the departing immigrant must be to return within a period
relatively short, fixed by some early event.” 21 F.2d at 308-09.
It seems likely that many permanent resident aliens who left the
country to avoid military service did so with the specific intent of
staying away “for the duration” and returning to the United States
when it was possible to do so without incurring criminal liability. In
our view, the formulation in United States ex rel. Lesto v. Day is
sufficiently flexible to permit the Department to regard the “duration”
as a “period relatively short” under the special circumstances present
here, with that period being fixed by the “early event” of a Presidential
pardon, whenever it might come. C f, Gamero v. INS, supra, 367 F. 2d
at 126. This approach is particularly justified here because the principal
deterrent to the aliens’ return—and therefore the principal reason why
their visits abroad became protracted—was the fact that they had
committed offenses that could give rise to criminal liability.22 The
pardon excuses these very offenses. It is consistent with the purposes of
the pardon to insure that its beneficiaries are not penalized by attaching
undue significance to the duration of the visit, which resulted from the
commission o f the pardoned offenses.
This is not to say that every pardoned alien who was once lawfully
admitted for permanent residence must automatically be regarded as a
permanent resident returning from a temporary visit abroad. A factual
question may still exist in some cases as to whether the alien possessed
the requisite animus revertendi during his absence. Because of the
pardon, the A ttorney General might wish to consider instructing INS
to adopt a liberal policy in this regard or to make clear that a protract­
ed stay due to the possibility of criminal liability will be regarded as a
tem porary visit abroad if the alien intended to return when he could do
so without incurring criminal liability. It might even be possible, as a
21 T hus, if an alien left the country w ith a fixed intention to return to the United States
after 20 years, the c onceded presence o f animus revertendi for that period w ould probably
not alone perm it the alien’s visit ab ro ad to be regarded as "tem porary.” But that will not
be the situation w ith m any perm anent resident aliens w ho will benefit from the pardon.
Cf., Matter o f Castro, 14 I& N Dec. 492, 494 (1973).
M T hus, aliens w h o remained out o f the c o untry because o f their possible criminal
liability have an explanation for th eir protracted stay that is consistent w ith an intent to
return to the U nited States as soon as they could. C f, United States v. Trudell, 49 F.2d at
732; Matter o f Kane, supra, at 7. See n o te 18, supra.
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procedural matter, to adopt a presumption that a permanent resident
possessed the intent to return during his absence, although this would
to some extent be in derogation of the case-by-case approach normally
followed.
John M. H armon
Acting Assistant Attorney General
Office o f Legal Counsel
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