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MATTER OF GROSS

In Section 212(e) Proceedings

A-17133431

Decided by Regional Commissioner July 11, 1969

Applicant's compliance with the foreign residence requirement would result

in exceptional hardship to her United States citizen husband within the meaning of section 212(e) of the Immigration and Nationality Act, as amended, where the citizen husband, recently discharged from the U.S. Army, intends to seek a college degree utilizing the educational benefits which inured to him thereunder.

ON BEHALF OF APPLICANT:

Harold L. Volkmer, Esquire
120 North Third Street
Hannibal, Missouri 63401

This case is before me on appeal from the decision of the District Director, who denied the application on the ground that compliance with the "two-year” rule would not result in exceptional hardship to the applicant's spouse.

The applicant is a citizen of Thailand, born March 12, 1944. She was admitted to the United States temporarily on June 22, 1966 as an exchange alien. On September 1, 1968 she graduated from Texas Women's University with a degree in Biology. On September 6, 1968 she married Charles Richard Gross, a United States citizen.

The applicant's husband was born at Greensboro, North Carolina. He was honorably discharged from the United States Army November 10, 1968 after serving since May 4, 1965. From May 30, 1966 until April 19, 1967 he served in Vietnam as a helicopter pilot. Section 212(e) provides, in part, as follows:

upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency, or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), the Attorney General may waive

the requirement of such two-year foreign residence abroad in the case if any alien whose admission to the United States is found by the Attorney General to be in the public interest ...

The applicant desires to utilize his rights as a veteran, to attend college seeking a degree as Marine Biologist. In addition to the educational assistance he would receive under the “G.I, Bill,” his wife will be able to assist. She is presently employed as a medical technologist earning $600 a month.

The applicant's spouse could not proceed with his education if he were to accompany her abroad. If he were to remain in the United States while she returned to Thailand for two years, he would be required to pay transportation and to support two households. He would also lose the assistance his wife could afford him in the United States. Veterans educational benefits usually expire eight years after the date of discharge. Delay in commencing to use his educational benefits could result in their expiration before he completed his education. In view of the fact that these educational benefits have been given the applicant's spouse as a right, in recognition of his service as a member of the armed forces, we believe interference with the use of these benefits does constitute "exceptional hardship" to the United States citizen spouse, as contemplated by the statute. We believe the waiver should be granted.

It is ordered that the appeal be sustained and that the District Director seek the recommendation of the Department of State.

It is further ordered that the case be processed to completion consistent with this order and the recommendation of the Departent of State.

MATTER OF DEL ROSARIO

In Exclusion Proceedings

A-17961978

Decided by Board June 27, 1969

An alien admitted as a nonimmigrant visitor who upon return to the United

States following an absence of one day in Mexico seeks to enter for permanent residence without an immigrant visa, is not within the ambit of Rosenberg v. Fleuti, 374 U.S. 449, and is excludable under section

212 (a) (20) of the Immigration and Nationality Act. EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182 (a) (20)]

Immigrant not in possession of a valid immigrant visa or other entry document.

ON BEHALF OF APPELLANT:

Joseph S. Hertogs, Esquire
580 Washington Street
San Francisco, California 94111
(Brief filed)

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney
Stephen M. Suffin
Trial Attorney
(Brief filed)

The case comes forward on motion of counsel requesting reconsideration of our order dated September 20, 1968 dismissing the appeal from the decision of the special inquiry officer dated July 25, 1968.

The record relates to a native and citizen of the Philippine Republic, 25 years old, female, married, who applied for admission to the United States at San Ysidro, California on July 13, 1968 after an absence of one day in Mexico. The applicant was a landed immigrant in Canada and was admitted to the United States on June 1, 1967 as a visitor for a period of 15 days upon presentation of her visitor's visa. On June 20, 1967 she applied for a third preference under the quota of the Philippines which was approved. The applicant filed her application to change her status to that of a lawful permanent resident under section 245

of the Immigration and Nationality Act. The applicant married a citizen of the United States on September 23, 1967. On July 12, 1968 she and her husband went for a one day trip to Mexico and it was on her return that she was held for a hearing before a special inquiry officer. The applicant's inspection was deferred and she was ordered to report for a hearing on July 25, 1968 to determine her admissibility to the United States under the Immigration and Nationality Act. The special inquiry officer, at the hearing, found that the applicant was applying for admission to the United States as a permanent resident although not in possession of an immigrant visa or other entry document, found her excludable under section 212(a) (20) of the Act as an immigrant not in possession of an immigrant visa. The appeal to this Board was dismissed on September 20, 1968.

The applicant argues that when she attempted to return to the United States after her overnight visit to Mexico, she was not seeking to make "an entry" and could not be excluded. The cases of Rosenberg v. Fleuti, 374 U.S. 449 (1963), Wadman v. INS, 329 F.2d 812 (9 Cir., 1964), and Wong v. INS, 358 F.2d 151 (9 Cir., 1966), are cited in support of the argument.

The Fleuti case was concerned with whether a permanent resident, whose original entry was in all respects lawful, and who, had he never stepped out of the United States, would not be subject to deportation on the charges in the order to show cause, rendered himself excludable, and hence deportable, by an absence of a couple of hours and subsequent return to the United States. The pertinent portion of section 101 (a) (13) in the Fleuti case by its very terms relates only to an alien having a lawful permanent residence in the United States. The Supreme Court held that an innocent, casual and brief excursion by a resident alien outside this country's borders may not have been "intended” as a departure disruptive of his resident alien status, and therefore may not have subjected him to consequences of an "entry" into the country on his return.

In the Wadman case, the Ninth Circuit Court had before it not the question of an "entry,” but whether a five day visit to Mexico

1 On February 20, 1969 the District Director, San Francisco District, denied the application for adjustment of status under section 245 on the ground that the application did not merit the favorable exercise of the Attorney General's discretionary authority due to the fact that the applicant had entered the United States on June 1, 1967 as a visitor with a preconceived intention of circumventing the normal procedure of obtaining an immigrant visa and remaining permanently in the United States.

broke the continuous period of physical presence in the United States required to establish eligibility for suspension of deportation. Although the court in Wadman made repeated references to the Fleuti decision, the legal question to be resolved was not the same. The question in the Wadman case was whether there was a sufficient continuity of physical presence in the United States to satisfy the requirements for suspension of deportation under section 244 (a) (1) of the Act. Likewise, in the Wong case, there was no question that the alien had entered the United States illegally. The court, which cited both Fleuti and Wadman, decided there was no question of sufficiency of physical presence and that the only question was whether there was a sufficient continuity so as to render the alien eligible for suspension of deporation."

It is concluded that the Fleuti case is inapplicable because the applicant was never admitted to the United States for permanent residence, and that the Wadman and Wong cases are likewise inapplicable because they merely dealth with continuity of physical presence so as to qualify for suspension of deportation. We pointed out in our prior order of September 20, 1968, that the applicant, as an immediate relative (wife) of a United States citizen, should have little difficulty in having her immigrant status adjusted in the event she returns to Canada where she was a landed immigrant. The motion will be denied.

ORDER: It is ordered that the motion to reconsider be and the same is hereby denied.

2 See also Matter of Legaspi, 11 I. & N. Dec. 819, regarding an alien who entered as a nonimmigrant, who was not maintaining his nonimmigrant status, and who, following a brief visit to Mexico, reentered the United States without inspection, and was held to have made an entry under section 101 (a) (13) of the Immigration and Nationality Act upon which to predicate a ground of deportability.

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