WINKENS

                                                          Interim Decision #2429




                             MATTER OF WINKENS

                          In Deportation Proceedings

                                    A-11953287
                    Decided by Board September' 9,'1975

Respondent gained lawful permanent residentstatus 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 subjed 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.]
Cnikriami
  Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Nonimmigrant visitor-
                       -remained longer.
Ort BEH.LF OF IMOrONDENT:                            ON BEHALF OF SERVICE:
  Douglas P. Haffer, Esquire                           Paul C. Vincent
  San Francislon 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.
                                         451
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. Dee. 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' hen 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.
    ORDER: The appeal is sustained and the record remanded for
further proceedings consistent with the above decision.




   Board member Irving A. Applemariabstained from e-orisideration of this case.

                                      452