Ernesto C. Idica v. Donald A. Radcliffe, District Director, United States Immigration and Naturalization Service, Department of Justice, Honolulu, Hawaii
Docket: 93-15187
Court: Court of Appeals for the Ninth Circuit; January 24, 1994; Federal Appellate Court
Ernesto C. Idica appealed the district court's dismissal of his habeas corpus petition, which challenged the Board of Immigration Appeal's order of exclusion. The court had jurisdiction under 8 U.S.C. § 1105a(b) and 28 U.S.C. § 2241, and the appeal was timely under 28 U.S.C. § 2253. The Ninth Circuit affirmed the district court's decision. Idica raised two arguments to justify his return to the U.S. after nearly three years abroad. First, he claimed citizenship through his mother, a U.S. citizen, but the Nationality Act of 1940's Section 201(g) required his mother to have resided in the U.S. for five years after turning 16. The court held that the doctrine of constructive residency—argued by Idica—does not apply in this context, as established in prior cases. Second, Idica contended that he should be allowed entry as a lawful permanent resident returning from a temporary absence. The court referenced the standard that absence is considered temporary only if it is fixed by an event with a defined timeframe and if the individual maintains a continuous intention to return. The Board found that Idica lacked such an intention, supported by substantial evidence: he quit his job in the U.S., worked in the Philippines, did not file U.S. tax returns, and failed to contact embassy officials to maintain his residency status. Ultimately, the Ninth Circuit affirmed the Board's findings and the dismissal of Idica's petition.