WONG

13 I. & N. Dec. 427

Opinion

Interim Decision #2014

MATTER OF WONG

In Deportation Proceedings A-12588659

Decided by Board November 28, 1969 When more than one ground of deportation exists and one ground arises later than the other, the period of continuous physical presence required to establish statutory eligibility for suspension of deportation under section 244(a) of the Immigration and Nationality Act, as amended, will be measured from the date of the later deportable violation.

CHARGES:

Order: Act of 1952—Section 241 (a) (2) [8U.S.C. 125(a) (2)] Remained longer—crewman.

Lodged: Act of 1952—Section 241(a) (5) [8 U.S.C. 1251(a) (5)3—Failed to furnish notification of address in violation of section 265 of the Act (8 U.S.C. 1305).

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Joseph S. Hertogs, Esquire R. A. Vielhaber Jackson and Hertogs Appellate Trial Attorney 580 Washington Street San Francisco, California 94111 (Brief filed)

Respondent appeals from the special inquiry officer's ruling that he is ineligible for discretionary relief.

The main question is whether the physical presence in the United States needed for suspension of deportation is to be reckoned from the first event which made respondent deportable or the last. We hold it is the last. The appeal will be dismissed.

Respondent, a 46-year-old male, a native and citizen of China, admitted in 1960 as a nonimmigrant crewman for a period not to exceed 29 days, remained without authority. On June 19, 1962, a special inquiry officer ordered him deported on the charge stated in the order to show cause. There was no other charge at this hearing. Respondent did not appeal.

In the summer of 1965, respondent failed to report as ordered

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Interim Decision #2014 for deportation. He could not be located (Exs. 5, 6) He left his employment and he moved. He did not notify the Service of his address. He did not file address reports for 1966 and 1967 because he feared he would be located and deported. The Service arrested him on August 21, 1967 (Ex. 7).

On September 20;1967, respondent moved for reopening of deportation proceedings so that he could apply for suspension of leportation. On September 29, 1967, the special inquiry officer delied the motion because respondent lacked the seven years resiience required for such relief. Respondent appealed to the Board. 3y this time seven years had passed. The Board reopened the ,roceedings. At the reopened hearing, the respondent applied for uspension of deportation. He admitted that he failed to report or deportation because he did not want to leave the United tates, that he hid from the Service, and that he failed to file his nnual address report because he was afraid to let the Service now where he was (pp. 9-10). The Service lodged the charge ised on his failure to furnish his address (Ex. 9). The special quiry officer sustained the original charge and the lodged .arge. An applicant for suspension of deportation who is deportable a section 241 (a) (5) charge must establish that he has been ysically present in the United States "[F]or a continuous peid of not less than 10 years immediately following the commisin of an act, or the assumption of a status, constituting a ound for deportation. . . ." Section 244 (a) (2) of the Act, 8 3.C. 1254(a) (2). In Matter of V—R---, 9 I. & N. Dec. 340 IA, 1961), we held the period of physical presence required for pension of deportation is measured from the time the alien became deportable. Relying on this rule, the special inquiry per denied respondent's application for suspension of deportat . He held that the act which last made respondent deportable the failure to file an address report in January 1967, and 'e it had not been followed by the passage of ten years, readent was not eligible for the relief. he difficulty which, confronts us arises from the fact that •e are conflicting judicial views on the issue. In Louie King g v. INS, 308 F.2d 191 (9 Cir., 1962), the court rejected our r and held that the ten-year period of physical presence starts the commission of the first act. We felt constrained to follow ruling of the court. In Matter of Bagai, 10 I. & N. Dec. 683 k, 1964), we overruled Mutter of V—R—, supra, and adopted . ule in Louie King Fong, supra. After we did this, the issue

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was reviewed in the Eighth Circuit. The court considered Louie King Fong, supra, and Matter of V—R--, supra. The court refused to follow Louie King Fong, .supra, and held that the ten- year period ran from the commission of the last deportable act. Patsis v. INS, 337 F.2d 733 (1964), cert. denied 380 U.S. 952 1965).

In the following year, both Louie King Fong, supra, and Patsis, supra, were considered in the Second Circuit. Rejecting Louie King Fong, supra, the court followed Patsis, supra, and held that the ten-year period ran from the commission of the last deportable act. Gagliano v. INS, 353 F.2d 922 (1965), cert. denied 384 U.S. 945 (1966).

The issue was also considered in several cases decided before Louie King Fong, supra. These cases were not the subject of comment in the cases we have already discussed. In the Sixth Circuit, a court held that an alien could not, in 1958, establish he had the necessary ten years of physical presence when he had been a subversive from 1932 to 1949. See Williams v. Sahli, 271 F.2d 228 (1959), cert. denied 361 U.S. 966. In an unreported district court case in the Sixth Circuit, a court stated by way of dicta that the ten-year period of physical presence runs from the time of the last failure to furnish an address report. Krug v. Pederson, C 62-376, N.D. Ohio, E.D. (June 24, 1964). In the Third Circuit, a court held that an alien who was deportable on two grounds arising out of an entry in 1956, and who in 1956 and 1957 failed to report his address, was ineligible for suspension of deportation because he could not establish ten years of physical presence immediately following the commission of such acts. But alino v. Hatland , 277 F.2d 270, 280 (1960), cert. denied 364 U.S. 863 (semble ) ; Matter of Bufalino, 11 I. & N. Dec. 351, 357-358 (BIA, 1965).

Counsel seeks to establish that Patsis and Gagliano are consistent with Louis King Fong. We must dismiss the contention. Counsel seeks to reconcile the cases. He believes they stand for the proposition that when there is more than one deportable ground, the period of physical presence runs from the time the more serious ground arose. To support his contention, counsel relies chiefly upon the fact that in Gagliano, the court said that Gagliano committed a more serious offense in entering the United States as a stowaway who had been previously deported than Fong committed by failing to register as required by law—a dereliction Fong had termed "a minor infraction." Gagliano v. INS, supra, at 929.

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Interim Decision #2014 The language in Gagliano, supra., relied upon by counsel must be considered with other language there. When so considered, it is clear that Gagliano, supra, does not rest on the attempted distinction . The court went on to say: the Eighth Circuit in Pitsis v. Immigration and Naturalization Service, 337 F.2d 733 (1964), cert. den. 380 U.S. 952, 35 S. Ct. 1085, 13 L.Ed.2d 970 ;1965), reached the opposite conclusion, reasoning that an alien who has ommitted a deportable act of any kind within ten years of his application or suspension should not be allowed to apply for such relief for it was this en-year probationary period with which Congress was concerned. "We rould have regarded it as a matter of common sense interpretation," said le court, "not to wring good fortune for an alien out of the statute because f a deportable offense cornmittted more than ten years previously when he ,ntinues to commit other deportable offenses in the interim." Id. at 740. We rree, and hold that Gagliano's reentry as a stowaway within the ten-year riod bars his request for discretionary relief (at 929; emphasis added). hus, it is clear that Gagliano followed Patsis and that it re- ',Med Patsis and Fong as inconsistent with each other. Furthermore, Patsis shows that the court rejected the contenm that one charge was to be weighed against another as to rich was the most reprehensible. The court stated that "[I]t is t for the courts to measure whether failure to file an address rd does or does not equate with subversion and immorality. ngress has said in so many words, and clearly, that it does" atsis, supra, at 741). Patsis expressed disagreement with the ult in Fong and its characterization of the filing requirement "'only a minor infraction of law"' (at 742). Chus, we have authority in the Second, Sixth and Eighth, and sibly the Third Circuits holding one way, and authority in the tth holding the other. This creates a dilemma. We are bound lecisions of circuit courts, but we are concerned with a federal which we must give a uniform interpretation in each part of United States. To follow the majority view in jurisdictions re it has been adopted or where the courts have not spoken on issue, and to follow the minority view in the Ninth Circuit, is ily a satisfactory way to achieve a consistent administrative tion. In an attempt to achieve uniformity, and to afford the Circuit an opportunity to review its Fong decision in light ecisions in the other circuits, we shall, with due deference to Vinth Circuit, uniformly follow the rule that when more than ground of deportation exists and one arises later than the the period of physical presence required for suspension of rtation will be measured from the later violation rather than the earlier. See Matter of Amado, Interim Decision No.

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1951 (BIA, 1969) ; Matter of Lim, Interim Decision No. 1947 (BIA, 1969).

Counsel contends that the Service is inconsistent in that it will in one case use a charge under section 241 (a) (5) foreclosing the alien from suspension of deportation, while in other cases with similar facts the charge is not used. In two cases cited, Matter of Lok, A10 824 448, and Matter of Chung, A10 824 951, alleged to be similar to the instant case, counsel states that suspension of deportation was granted. The cases are not part of our records for they are not cases in which the Board acted. The charge to be used in a deportation case is a determination to be made by the Service. Our concern is with whether or not a charge should be sustained.

Counsel sees an inconsistency in the fact that Patsis, although ineligible for suspension of deportation, was held eligible for voluntary departure, but the special inquiry officer here held respondent ineligible for voluntary departure. There is no inconsistency . The ground of deportation in Patsis was not a ground which precluded the grant of voluntary departure: one of the grounds here, section 241 (a) (5) of the Act does make a person ineligible for voluntary departure unless he is eligible for suspension of deportation, section 244 (e) of the Act. We have seen that respondent is not eligible for suspension of deportation.

ORDER: The appeal is dismissed.