...

through the port of Hidalgo, Texas, on or about July 30, 1960. He testified that he returned to the United States with a group "we stopped at the bridge at Hidalgo, Texas, and the inspector asked us if we were all United States citizens and I nodded my head, yes" (p. 2 of Ex. 2). According to the record the respondent was in Mexico for only four or five hours on each occasion.

The issue presented by the trial attorney's motion is whether the respondent's return to the United States after the two brief casual visits to a border town in Mexico subjected him to the consequences of an “entry” into the United States in light of the Fleuti decision (supra). The Fleuti case concerns an alien who was originally admitted to the United States for permanent residence in 1952 and had resided here continuously except for a brief visit of about a couple of hours in Mexico in 1956. He was ordered deported on the ground that at the time of his 1956 return he was excludable under section 212 (a) (4) of the Immigration and Nationality Act as an alien “afflicted with psychopathic personality." The Supreme Court held that under section 101 (a) (13) of the Act 2 an innocent, casual and brief excursion by a resident alien outside the borders of the United States may not have been "intended” as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an "entry" into the United States on his return.

We are of the opinion that a reopening of the proceedings for the purpose of reconsidering our decision of July 25, 1962 in light of the Supreme Court's ruling in the Fleuti case (supra), decided some 11 months later on June 17, 1963, would serve no useful purpose because Fleuti does not apply to an alien who enters the United States without inspection. The immigration laws have provided for the inspection of aliens entering the United States since the Act of March 3, 1875 (18 Stat. 477). Section 235 of the Immigration and Nationality Act provides, inter alia, that “all aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe" (8 U.S.C. 1225). 8 CFR 235.1 sets forth in detail the requirements which must be met by an alien. seeking to enter the United States regardless of the purpose for

2 Section 101 (a) (13) of the Immigration and Nationality Act defines the term "entry" as "any coming of an alien into the United States, from a foreign port or place . . . except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purpose of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place was not intended by him . . .' (Emphasis supplied.)

which he seeks to enter. Among the requirements are the following: an alien must apply in person at a place designated as a port of entry and such an alien has the burden of establishing his admissibility.

The Supreme Court in the Fleuti case (supra) concluded that it would effectuate Congressional purpose to construe the intent provision in section 101 (a) (13) of the Immigration and Nationality Act (supra) as meaning an intent to depart in a manner which can be regarded as meaningfully disruptive of the alien's permanent residence. The Court also stated that one of the factors relevant to inferring such an intent is whether the alien by leaving the United States "accomplish (ed) some object which is itself contrary to some policy reflected in our immigration laws." It was the opinion of the Court that if this be the case "the interruption of residence thereby occurring would properly be regarded as meaningful" (374 U.S. at p. 462; 10 L. ed. 2d 1009).

There is no question but that the respondent intended to resume his residence when he reentered the United States in 1959 and 1960. However, this intent in and of itself does not preserve to the alien the right to return to the United States in a manner which is contrary to the immigration laws, viz., knowingly evading inspection. The respondent by claiming to be a citizen avoided the inspection process. Such action is contrary to a policy which has been reflected in our immigration laws since 1875. If the immigration laws and the established techniques of inspection are to have any meaningful and rational application it must be held that the respondent made an entry from a foreign port or country under section 101 (a)(13) of the Immigration and Nationality Act (supra) when he returned from Mexico in 1959 and 1960. We conclude that the case of Rosenberg v. Fleuti does not apply where a resident alien is charged with entry without inspection following a casual visit to a foreign country. The motion will be denied.

ORDER: It is directed that the motion be and the same is hereby denied.

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.* [Wadman v. Immigration and Naturalization Service, 329 F.2d 812 (1964), held inapplicable since respondent was not lawfully admitted for permanent residence.]

CHARGE:

Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a) (1)]—Excludable at entry under section 212(a)(20) [8 U.S.C. 1182 (a) (20)]—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.

Respondent, 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 Mexico in November 1961. He voluntarily appeared before the Service in 1962, and confessed that he was illegally in the United States; these deportation proceedings were brought. The special inquiry officer found respondent deportable, granted voluntary departure, denied 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 358 F.2d 151 (C.A. 9, 1966), 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.

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 active duty status in the Armed Forces" (section 244 (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 (Matter of Peralta, Int. Dec. No. 1290 (1963); 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 application (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 residence (Matter of Jacobson, Int. Dec. No. 1413 (1964); Matter of Wong, Int. Dec. No. 1334 (1964). The effect upon our rule of a decision in the judicial circuit in which the respondent resides must be considered. In Wadman v. Immigration and Naturalization Service, 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 surrender 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 deportable because his original entry had been illegal and he was refused suspension of deportation on 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

245-235-67- -9

alien after a departure which was not "intended" was not to constitute an "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 returned the case to the special inquiry officer to determine whether Wadman's departure had been a "significant one under the guides laid down in Fleuti" (at 816).

The court did not specifically discuss whether or not its determination applied to an 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 concern 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 permanent residence and subsequently became deportable (cf. Zimmerman v. Lehmann, 339 F.2d 943 (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 Jacobson, 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.