WONG

Opinion

Interim Decision #1444

MATTER OF TitONG

In Deportation Proceedings • A-13128478 'Decided by Board Apra7 p,1965 Respondent, who has never been lawfully admitted to the United States for permanent _residence, is statutorily ineligible for suspension• of deportation under section 244(a) (1), Immigration and Nationality Act, as amended, since he is precluded from establishing continuous physical presence by reason of a 2-hour absence to Mexico in 1961 during the statutory period.* tcfrtielman v Insmivrativm and Scauraticatirm Service, 829 Ir.28. 812 (1984), held inapplicable since respondent was not lawfully admitted for permanent residence.] CHARM • . • ' - Order: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)3—Excludable • at entry under section 212(a)' (20) [8 U.S.O. 1182 • (a) (20)3—No immigrant visa.

' The issue is .whether respondent has been physically present in the ;United States for a continuous period of not less than seven years from the date of his application for suspension of deportation. llespondent, a 29-year-old single male 'alien; a native and citizen of China, illegally entered the - United States on August 24, 1951 upon his false claim to United States citizenship; he has been in the United States continuously except for a visit of about two hours to Mexiio in November 1961. He voluntarily appeared before the Serv- ice in 1962, and„confessed that he wa:s illegally in the United States; these deportation proceedings were brought. The special inquiry of- ficer found respondent deportable, granted voluntary departure, de- nied suspension of deportation, and certified his order to the Board for final decision. No change will be made in the special inquiry officer's order. *Overruled; see 858 2'.2d 151 (C.A. 9, 1968), wherein the Court held that applicant's brief visit to Mexico did not bar him from consideration for suspension of deportation as a matter of law •

106 Interim Decision #1444 With one exception, an applicant for suspension of deportation under section 244(a) (1) of the Act is required to establish that he has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of his application. The exception relates to an alien who has served honorably for a minimum period "of twenty-four months in an ac- tive duty status in the Armed Forces" (section 214(b) of the Act (8 U.S.C. 1254(b)). The respondent attempted to establish that he was within the exception. He was inducted into the Armed Forces on August 8, 1958 and was transferred to the Reserves on July 30, 1960. He served in an active duty status for a total of one year,11 months and 23 days; this service is several days short of the 24 months required to give respondent the exemption he claimed (Mat- ter of reralta, Int. Dec. No. 1290 (1960 ; Matter of Louie, Int. Dec. No. 1310 (1963)). Respondent must, therefore, establish that he meets the requirement of section 244(a) (1) concerning continuous physical presence. The record establishes by affidavits submitted by the respondent, army record, and Service investigation, that respondent has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of his ap- plication (August 1, 1963) except for his two hour visit to Mexico in November 1961. We have held than any absence in the 'required period, no matter how brief, will break the continuity of physical presence of an alien except that a "casual visit" as that term is explained in Rosenberg v. Fleuti, 347 U.S. 449 (1963), will not break the continuity of physical -presence if the alien had: been lawfully admitted for permanent resi- dence (Matter of Jacobson, Int. Dec. No. 1413 (1964) ; Hatter of. Wong, Int. Dec. No. 1384 (1964). The effect upon our rule of a. decision in the judicial circuit in which the respondent resides must be considered. In jitadmuin v. Immigration and Naturalization Sorpice, 329 F.2d 812 (9th Cir., March 26, 1964), an alien whose commission of crime Prior to his application for a visa made him ,

ineligible for the issuance of a visa, nevertheless received a visa and entered the United States in 1955 upon suriender of the visa. He remained in the United States continuously except that in 1958 he spent five days of a vacation trip in Mexico. He was found deport' able because his original entry had been illegal and he was refused suspension of deportation & the ground that his vacation trip broke the continuity of his physical presence. On judicial review, the court finding that Fleuti held that the return of a permanent resident 107 Interim Decision #1444 alien after a departure -which was flat "intended" was not to consti- tute ari "entry" as that term was defined by section 101(a) (13) of the Act (8 U.S.C. 1101(a) (13) ) and pointing to the protection from unsuspected risks afforded "the resident alien" rejected the contention that there is a distinction between the making of an "entry" and the concept of continuous physical presence and re- turned the case to the special inquiry officer to determine whether Wadman's departure had been a "sig-nifictint one under the guides laid down in Fleuti" (at sn). The court did not specifically discuss whether or not its determina- tion applied to en alien whose original entry was illegal. Since the circuit court's analogy was to a situation which concerned a legally resident alien, since the court spoke of the resident alien and did not specifically state that its ruling applied to one who never had the status of a legal resident alien, since the court specified that the "guides laid down in Fleuti" were to be applied guides which con- cern legally resident aliens, since the respondent has never been a legally resident alien, and since Wadman seeks to create an exception, we believe it proper to interpret Wadman narrowly and hold that it applies only to the alien who had been legally admitted for perma- nent residence and subsequently became deportable (cf. Zimmerman v. Lehmann, 889 F.2d 948 (1965) ). The respondent having never had the status of a legally resident alien (section 101(a) (20), 8 U.S.C. 1101(a) (20) ), we will apply the rule in Matter of daeobson, supra, and hold that respondent has failed to establish that he possesses the continuous physical presence required by law of an applicant for suspension of - deportation. ,Apart from finding the respondent ineligible on the ground that he lacks the required physical presence, we would have no reason to rule the respondent either ineligible for relief or undeserving of relief. . ORDER: It is ordered that no change be made in the -order of the special inquiry officer. .