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Chavez-Ramirez v. I.N.S., 792 F.2d 932, 936-37 (9th Cir. 1986)

We have previously recognized the widely disparate views of what constitutes a “temporary visit abroad.” See Tejeda v. INS, 346 F.2d 389, 393 n. 3 (9th Cir.1965). And we have cited with approval at least the portion of the Second Circuit's test in United States ex rel. Lesto v. Day that classifies a visit as temporary so long as it is “for a period relatively short, fixed by some early event.” See Alvarez v. District Director of United States Immigration and Naturalization Service, 539 F.2d 1220, 1224-25 (9th Cir.1976); Gamero v. INS, 367 F.2d 123, 126 (9th Cir.1966). We now turn to consider the question of whether a visit can be classified as temporary when, as in United States ex rel. Polymeris v. Trudell, the visit is not fixed by some early event but turns on an event with a reasonable possibility of occurring within a short period of time.

We note at the outset that the Second Circuit's construction of the phrase “temporary visit abroad” does not include within it all visits abroad that are simply “not permanent,” and we agree with the Second Circuit's approach. If a permanent resident left the United States on a visit that would not end for twenty years, the visit would not be permanent but it hardly could be considered temporary either. If Congress had intended to allow permanent residents to reenter the United States and retain their status after “all visits abroad that are not permanent” it could have done so. Congress chose instead to use the word “temporary,” and we believe the usage contemplates a return within a relatively short period of time.


With this understanding, we hold that a permanent resident returns from a “temporary visit abroad” only when (a) the permanent resident's visit is for “a period relatively short, fixed by some early event,” FN4 or (b) the permanent resident's visit will terminate upon the occurrence of an event having a reasonable possibility of occurring within a relatively short period of time.FN5 If as in (b), the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the entirety of his visit. Some of the factors that could be used to determine whether an alien harbored a continuous, uninterrupted intention to return in addition to the alien's testimony include the alien's family ties, property holdings, and business affiliations within the United States, the duration of the alien's residence in the United States, and the alien's family, property and business ties in the foreign country. The immigration judge and the BIA might also consider if the alien's conduct while outside of the United States constitutes an affirmative indication that he intends to remain in the foreign country. The alien, for example, might have acquired substantial or permanent ties to the foreign country after leaving the United States, or instead, the resident immigrant may have been persistent in his retaining his status by conferring with American officials during his visit.


FN4. Gamero v. INS, 367 F.2d at 126; United States ex rel. Lesto v. Day, 21 F.2d at 308-09.


FN5. See Nagano v. Brownell, 212 F.2d 262; United States ex rel. Polymeris v. Trudell, 49 F.2d 730.