Without Required Documents
to section 211(b) of the Act, notwithstanding the provisions of INA
Section 212(a)(7)(A), a returning resident immigrant, or “special
immigrant,” as defined in section 101(a)(27)(A) of the Act,
who is otherwise admissible may be readmitted to the U.S. by the district
director in his discretion, and pursuant to such conditions as may
be prescribed by regulation, without being required to obtain a passport,
immigrant visa, reentry permit or other documentation. INA Section
211(b). Denial of a waiver by the district director is not appealable
but shall be without prejudice to renewal of an application and reconsideration
in proceedings before an immigration judge. 8 C.F.R. Section 1211.4.
101(a)(27)(A) of the Act defines “special immigrant” as
an immigrant, lawfully admitted for permanent residence, who is returning
from a temporary visit abroad. The
Board of Immigration Appeals (BIA) has held that the term "temporary,"
as used in INA Section 101(a)(27), is not inflexibly defined and varies
in application depending upon the facts and circumstances of each
particular case. Matter of
Huang, 19 I. & N. Dec. 749, 753 (BIA 1988).
Where an applicant for admission has a colorable claim to returning
resident status, DHS has the burden of proving, by clear, unequivocal,
and convincing evidence, that the applicant is not eligible for admission.
Id. at 753-54.
an applicant was a minor during the period in question, the Court
must look to the intent of the applicant’s parents to determine
whether he intended to abandon his residence in the United States.
of Zamor, 17 I. & N. Dec. 395, 397 (BIA 1980) (finding
that the intent of the parents regarding whether they abandoned their
resident status, is imputed to the accompanying child).
TO GENERIC ORAL DECISION FORMAT