593 (December 22, 1967). The Board of Immigration Appeals has also held that enforced departure from the United States without formal exclusion or deportation proceedings did not break the continuity of domicile. Matter of C-, 2 I. & N. Dec. 168 (June 27, 1944). Attention is directed to the fact that while the decisions referred to in the paragraph above are concerned with the continuity of residence and domicile under specified situations, none of said decisions dealt directly with the issue involved in the instant case, namely, the continuity of physical presence in the United States following a departure pursuant to a grant of administrative voluntary departure privilege. However, in discussing the specific statutory prerequisites for suspension of deportation, it is stated in Immigration Law and Procedure, Gordon and Rosenfield, in section 7.9d (2) on Page 7-95: “Different qualifying periods of sojourn are required (7 and 10 years) for the two statutory categories. But the mere maintenance of a domicile or place of general abode is not sufficient. The statute is explicit in commanding in each instance continuous physical presence in the United States for the requisite period. The requirement of continuous physical presence, as distinguished from residence or domicile, is new in the 1952 Act. ***** (Emphasis added.) The Board has also recognized that "residence" and "physical presence" are not synonymous. Matter of Young, 11 I. & N. Dec. 38 (January 29, 1965); Matter of Graham, 11 I. & N. Dec. 234 (June 25, 1965). Considering that both departures of the respondent from the United States in 1968 and 1970 were effected by her in order to avoid the institution of deportation proceedings by this Service, said departures must be regarded as meaningful rather than merely brief and casual, despite the intent and actual return to the United States shortly after the departures. In the premises, it is concluded that the respondent's departures do not come within the rationale of the Wadman decision, supra. Inasmuch as I find that, in light of the foregoing, the respondent cannot establish continuous physical presence in the United States for the required seven-year period, it is concluded that she is statutorily ineligible for the privilege of suspension of deportation. During the hearing the respondent testified that she has been a widow since her husband's death on December 11, 1956; that in Mexico she has her mother, brothers and sisters; that her only close relatives in the United States are her daughter and a brother who is a lawful resident of this country; that her daughter was born in Mexico on February 2, 1957, shortly after her husband's death; that she has never been arrested in the United States or Mexico; that she has never been deported from the United States; that she is not now and has never been a member of the Communist Party or any other subversive organization; that she is employed as a sewing machine operator; that she has raised her daughter without aid from any other person; that she attempted to obtain an immigrant visa but was unsuccessful because she was financially unable to prosecute such application; that if suspension of deportation is denied she would be ready, willing and able to depart from the United States at her own expense when required to do so; that prior to coming to the United States in 1963 she had resided on a very small ranch in Mexico with her mother, brothers and sisters; that life there was very hard; that they were very poor and there was no opportunity for employment; that there was no school in the vicinity of the ranch; that the same conditions exist in that area today; that if she were required to leave the United States she would be compelled to return to the ranch inasmuch as there is no other place she could go; that she would be unable to support herself; that during her residence in the United States she has been sending money to Mexico for the support of her mother; that her daughter is attending school in the United States, and that if her deportation should be required she designated Mexico as the country of deportation. Inasmuch as the respondent is statutorily ineligible for suspension of deportation, under the facts in the instant case, the maximum relief for which the respondent can qualify is voluntary departure in lieu of deportation. As a matter of administrative discretion, said alternative form of relief which was applied for in her behalf by counsel will be granted. ORDER: It is ordered that the respondent's application for suspension of deportation be, and the same is hereby, denied. It is further ordered that in lieu of an order of deportation the respondent be granted voluntary departure, without expense to the Government, on or before July 22, 1971, or any extension beyond such date as may be granted by the District Director, and under such conditions as the District Director shall direct. It is further ordered that if the respondent fails to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following shall thereupon become immediately effective: The re spondent shall be deported from the United States to Mexico on the charge contained in the order to show cause. BEFORE THE BOARD (September 13, 1971) The respondent is a 36-year-old native and citizen of Mexico who has conceded deportability on the above-stated charge. She initially entered the United States in November 1963 on a border crossing identification card which was limited to 72 hours. She remained in the United States continuously except for a one-day departure to Mexico in February 1968 and approximately a oneweek departure to Mexico in April 1970. On both of these occasions she was apprehended by officers of the Service and was permitted to depart voluntarily in lieu of the institution of formal deportation proceedings. She reentered the United States after the two departures utilizing her border crossing identification card to regain entry. At the hearing the respondent conceded deportability. This appeal is from the special inquiry officer's decision of April 22, 1971 which denied the respondent's application for suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act. The basis for denial was that the respondent was statutorily ineligible for such relief since she had not met the requirement of being physically present continuously for not less than seven years in the United States. The special inquiry officer found the respondent deportable, but granted the requested privilege of voluntary departure on or before July 22, 1971. The Board has reviewed the evidence and is satisfied that deportability has been established by evidence that is clear, convincing, and unequivocal. The special inquiry officer has prepared a well reasoned decision encompassing all of the pertinent elements of this case. We concur in his conclusion that the respondent's departures from the United States were meaningful, rather than casual, departures and that the relatively brief periods of her absence from this country constituted breaks in the continuity of her physical presence in the United States. The evidence of record establishes that the respondent was apprehended on both occasions and chose to depart voluntarily rather than to become the subject of deportation proceedings. The departures were therefore "enforced" departures and support the conclusion that there were two clear breaks in the required continuity of physical presence in the United States. After carefully appraising the evidence in the light of the pertinent legal principles and case law, the Board can find no basis for disturbing the decision of the special inquiry officer. In granting the respondent voluntary departure, the special inquiry officer extended the maximum relief that may be awarded. Since the execution of the special inquiry officer's order has been stayed during the pendency of this appeal, the Board will provide for the voluntary departure of the respondent within 90 days from the date of this decision. ORDER: It is ordered that the appeal be dismissed. It is further ordered that, pursuant to the special inquiry officer's order, the respondent be permitted to depart from the United States within 90 days from the date of this decision or any extension beyond that time as may be granted by the District Director, and that, in the event of failure so to depart, the respondent shall be deported as provided in the special inquiry officer's order. MATTER OF LEE In Visa Petition Proceedings A-17523878 Decided by Board September 30, 1971 Petitioner's alleged adoption of beneficiary in China in 1943 when latter was 8 years of age has not been established for immigration purposes since there was no written adoption agreement nor was beneficiary brought up as a child of the adopter since infancy (under 7 years of age) in accordance with Article 1079 of the Chinese Civil Code. Further, even if adoption occurred as alleged, beneficiary's subsequent return in 1946 to Indonesia where he lived with his natural mother from 1946 to 1956 raises the possibility of mutual termination of the adoptive relationship under Article 1080 of the Chinese Civil Code, and petitioner has failed to offer sufficient evidence to explain away the doubt raised as to the continuing effect of the "adoption". ON BEHALF OF PETITIONER: Sanford A. Peyser, Esquire New York, New York 10013 Petitioner, a permanent resident alien, applied for preference status for the beneficiary as her adopted unmarried son under section 203 (a) (2) of the Immigration and Nationality Act. The District Director denied the application in an order dated June 19, 1970, and the petitioner appeals from that denial. The appeal will be dismissed. The beneficiary is an unmarried male, age 38, who was born in China in 1933. His natural father is Lee Ming Sam. Lee Ming Sam married the beneficiary's natural mother, Lam Tjon Ho, in 1928. There were three other children issue of their marriage who were born in 1935, 1940 and 1953. In 1933, the beneficiary's father, Lee Ming Sam, moved his family to what is now Indonesia. In 1941, Lee Ming Sam, accompanied by the beneficiary who was then eight years old, returned to his native village in China to visit his mother. Shortly thereafter the Japanese invaded the Dutch East Indies and Lee Ming Sam, losing all communication with his wife, Lam Tjon Ho, and |