for the fraud and the impediment of the fraud, respondent must not have had some other impediment at the time of entry that would make him inadmissible.

The Service asserts that to be "otherwise admissible" means that the respondent must have been in possession of a valid visa at the time of his entry, and that respondent cannot receive the waiver. He was actually a quota immigrant, who entered as a nonquota immigrant. See Matter of D'O—, 8 I. & N. Dec. 215 (1958), wherein we held that proceedings could not be terminated under section 7 of the Act of September 11, 1957 (P.L. 85-316) where respondent evaded the quota restrictions by securing entry as a nonquota immigrant. We stated in D'O— that there is nothing in the history of section 7 of the Act of September 11, 1957 which indicates that it was the intention of Congress to remove the careful protection which had been built into the immigration laws regarding quotas. We stated, "Section 7 excuses the presence of fraud. It does not wipe out the existence of all other grounds of inadmissibility which may have been present. Section 7 also excuses the fact that an alien had been charged to the wrong quota.' We agree with the Service contention that respondent was not "otherwise admissible" at the time of his last entry as required by section 16 of the Act of September 26, 1961.

We are well aware of the hardship factors on which counsel has dwelt at length. The same factors exist in the visa petition cases, of which Interim Decisions Nos. 1222 and 1223 are examples. There are certain to be family ties in the alien's favor in these cases; otherwise, this problem in statutory construction could not arise since there would be no visa petition filed in his behalf, and no request for a waiver under section 241 (f) which is available only to a spouse, parent or child of a United States citizen or lawfully resident alien.

We find nothing in the record to justify reexamination of the issue of the good faith of respondent's first marriage. Aside from the testimony of respondent's first wife, he admitted that he would have left the United States when he was first apprehended if he had not found someone to post the $1,000 bond for him. He also testified that he knew that some of his friends from Sicily had married in the United States and had been permitted to remain here. Respondent was represented throughout the 1958 proceedings by counsel who was vigorous and knowledgeable.

Section 16 of the Act of September 26, 1961 provides an absolute waiver for an alien who has procured documentation by fraud and who comes within the other requirements of the provision. If respondent were given such a waiver he and the Government would be in an untenable position. He could not get a visa, because of the prohibition contained in section 10 of the Act of September 26, 1961, but neither

could he be deported. He could not be granted a legal status, but neither could his illegal status be litigated, because these proceedings would have been terminated. Aside from the finding that respondent was not "otherwise admissible" at entry, it is our conclusion that an alien who has been the beneficiary of a visa petition based on a marriage found later to have been contracted for the purpose of evading the immigration laws, cannot claim the benefit of the waiver provided by section 16 of the Act of September 26, 1961, adding section 241(f) to the Immigration and Nationality Act. This is the only interpretation which reconciles section 205 (c) as amended, with section 241 (f) of the Immigration and Nationality Act.

ORDER: It is ordered that the appeal be and is hereby dismissed.

MATTER OF BUSTILLOS-RUIZ

In EXCLUSION Proceedings

A-13040423

Decided by Board October 26, 1962

Where the rentention provisions of section 301 (b) of the Immigration and Nationality Act can be met by an interpretation of section 16, Act of September 11, 1957, which permits the periods of permissible absence to be included in the computation of the required period of physical presence, as well as by an interpretation which requires the periods of absence to be compensated for by additional periods of physical presence, it is unnecessary to adopt one or the other of such interpretations in deciding the case. cf. Matter of BustillosRuiz, Interim Decision #1243.

The Board of Immigration Appeals on August 7, 1962, entered an order directing the reopening of this case for the introduction of additional evidence on the issue of whether the applicant's physical presence in the United States has been sufficient for the retention of his United States citizenship acquired at birth (section 301 (b) of the Immigration and Nationality Act, as amended by section 16 of Public law 85-316; 8 U.S.C. 1401 (b) and 1401b). The order also directed that the case be certified to the Board for final decision pursuant to 8 CFR 3.1 (c). The case is again before us following a reopened hearing accorded the applicant on September 5, 1962.

The applicant, a married male, 24 years of age, was born in Mexico on Jan. 2, 1938, of lawfully married parents, one of whom was a citizen of the United States, the other an alien. He applied for entry as a United States citizen at the port of El Paso, Texas on February 4, 1962. He was excluded as an alien not in possession of an immigration visa (section 212(a) (20), Immigration and Nationality Act, 8 U.S.C. 1182 (a) (20)). The special inquiry officer concluded that the applicant had lost his United States citizenship by failing to establish a residence in the United States prior to his 23rd birthday and therefore required documentation to enter as an alien.

Our decision of August 7, 1962, rejected the special inquiry officer's interpretation of section 301 (b), as amended, to wit: that in order for

the foreign-born child to retain citizenship acquired at birth he must enter the United States for permanent residence before attaining the age of 23 years, and shall thereafter be physically present in the United States for at least 5 years following any such entry prior to the age 23 and after age 14. We also rejected the special inquiry officer's interpretation that section 16 of Public Law 85-316 (supra) avails the applicant nothing because as a condition precedent to computing allowable absences from the United States the foreign-born citizen child must "take up residence in the United States" prior to his 23rd birthday.

The Board's decision of August 7, 1962, is based on our conclusion that it was the intent of Congress to eliminate the residential requirements for retention of citizenship formerly embodied in section 201 (g) of the Immigration and Nationality Act of 1940 when they enacted section 301 (b) of the Immigration and Nationality Act (supra). We reasoned that it would distort the retention provisions of the present Act if we were to equate such phrases as "must reside in the United States" and "has not taken up residence in the United States" the language used in the retention provisions of former section 201 (g), with the phrases "he shall come to the United States" and "be continuously physically present in the United States" the language now found in the retention provisions of section 301 (b) of the Immigration and Nationality Act.

Section 301 (b) of the Immigration and Nationality Act provides in substance that a child born abroad to parents, one of whom is an alien, retains his United States citizenship provided he comes to the United States prior to attaining the age of 23 years and immediately following any such coming he is physically present in the United States for a continuous period of at least 5 years, which physical presence must follow the attainment of 14 years and precede the age of 28 years. The amendment to section 301 (b) permits absences from the United States of less than 12 months in the aggregate during the period for which continuous physical presence is required. A limited interpretation could construe that portion of the amendment which reads "during the period for which continuous physical presence in the United States is required" to mean that the foreign-born citizen must have a continuity of actual physical presence in the United States totaling 5 years prior to attaining the age of 28 years and this 5-year period must not be interrupted by total absences which aggregate 12 months or more (8 U.S.C. 1401b).

The aggregate of the applicant's absences from the United States between his 23rd birthday (January 2, 1961) and February 4, 1962, the date he applied for admission, totals 1782 days (see appendix A, Board's decision, August 7, 1962). Under the limited interpretation

of the statute and the amendment, the applicant must have a continuity of actual physical presence in the United States immediately preceding January 2, 1961 (23rd birthday) which will compensate for the 17812 days of absences noted above. Furthermore, after compensating for 1782 days of absences, the applicant, in order to establish actual presence in the United States for a continuous 5-year period which is not interrupted by total absences which aggregate 12 months or more, must establish that his absences have not exceeded 18512 days during any 5-year period running from a date certain prior to his 23rd birthday and ending on a date prior to his 28th birthday (January 2, 1966).

Appendix I attached to the special inquiry officer's opinion of September 20, 1962, is a computation of the applicant's physical presence in Mexico between April 1, 1959 and December 31, 1960. The computation shows that for the period September 16, 1959, through December 31, 1960, the applicant was physically present in Mexico for a total of 16312 days which is less than 1852 days of allowable absences for this period.

The applicant sought to enter the United States as a citizen on February 4, 1962. Between September 16, 1959, and 12:00 midnight on February 3, 1962, there is a span of 872 days or 2 years 4 months and 18 days. During this period the applicant has been absent from the United States for a total of 342/12 days. Accordingly, if the applicant had been admitted as a citizen on February 4, 1962, it would have been mathematically possible for him to acquire a continuity of actual physical presence in the United States totaling 5 years prior to his 28th birthday because during the period September 16, 1959 through February 3, 1962, the total of his absences amount to some 2211/12 days less than one year (see Appendix I attached to the special inquiry officer's opinion).

Using September 16, 1959, as the beginning of the continuous 5-year period, the applicant has been physically present in the United States for a total of 1 year 5 months and 12 days as of February 4, 1962, the date he sought to enter. Accordingly, between September 16, 1959, and a date certain in September of 1965 the applicant can acquire a continuity of actual and potential physical presence in the United States totaling 5 years prior to attaining the age of 28 years and during this period the applicant may be absent from the United States for not more than 221112 days. Since the evidence now of record meets the test of continuous actual physical presence according to a limited interpretation of the statute as amended, we will affirm that portion of the special inquiry officer's decision which applies this test and the order admitting the applicant as a citizen of the United States.