gration and Nationality Act (8 U.S.C. 1101 (a) (33)). It is defined as "the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent." The term "physical presence" on the other hand is not defined in the Immigration and Nationality Act. It is found however in the suspension of deportation provisions of section 244 (a) (8 U.S.C. 1254) as well as in sections 301(a), 301 (b) (supra) and section 16 of Public Law 85-316 (supra). (Emphasis supplied.)

There is no express language in section 301 (b) or section 16 of Public Law 85-316 that requires a citizen who derived his nationality under section 301 (a) (7) to establish a "residence" in the United States during any five-year period following "the attainment of the age of 14 years and (preceding) the age of 28 years."3 Physical presence within the meaning of section 301 (b) and section 16 of Public Law 85-316 may be, but is not necessarily concurrent with or the same as "residence" a term expressly defined by section 101 (a) (33) of the Immigration and Nationality Act. If Congress had intended that "physical presence" be equated with "residence" it could have done so by using the words "reside" or "residence" as it did in section 301 (c) (supra). There is no requirement in the statute that such a citizen. "shall come to the United States" with the intention of residing permanently. (Emphasis supplied.)

The applicant has been commuting from Mexico as a citizen since he obtained employment in the United States in November of 1953. Loss of nationality by a commuter who derived citizenship under section 301 (a) (7) of the Immigration and Nationality Act (8 U.S.C. 1401 (a) (7)) presents a mathematical problem by reason of the fact that physical presence in the United States must be computed on the basis of the number of hours the commuter is actually in the United States each day while traveling to, engaged in and returning from his employment. Under the amendment to section 301 (b), enacted September 11, 1957 (Public Law 85-316, 8 U.S.C. 1401b), the commuter may continue to reside abroad provided his absences from the United States are less than 12 months in the aggregate during the period for which continuous physical presence is required. (Emphasis supplied.) The question to be resolved in the instant case is whether it is mathematically possible for the applicant to establish five years of continuous physical presence in the United States prior to attaining the age of 28 years on August 22, 1966, inasmuch as he continued to commute from

3

Although the applicant was born abroad subsequent to May 24, 1934, subsection (c) of section 301 of the Immigration and Nationality Act (8 U.S.C. 1401 (c) has no application to his case because prior to the effective date of the Immigra tion and Nationality Act “he did not take up residence in the United States before attaining the age of 16 years."

Mexico until September 28, 1961, which is 37 days after he attained the age of 23 years on August 22, 1961. If the applicant's absences aggregate "less than 12 months *** following any *** coming (to the United States) *** prior to attaining the age of 23 years" then such absences do not break the continuity of the required five years of physical presence in the United States (section 301 (b)— Immigration and Nationality Act as amended by Public Law 85316). (Emphasis supplied.)

The applicant testified that he works on Saturday (p. 11). Allowing four hours each day for travel and lunch, based on an eight hour work day six days each week, we conclude that the applicant was physically present in the United States for a total of 72 hours or three days each week. During the 37 day span between August 22, 1961, his 23rd birthday, and September 28, 1961, the day he moved his residence to the United States, the applicant was absent from the United States for a total of five Sundays plus 16 days during his regular work week or a total of 21 days overall. (Emphasis supplied.)

Accordingly when the applicant applied for admission on February 4, 1962, it was mathematically possible for him to establish five years of continuous physical presence in the United States prior to August 22, 1966, his 28th birthday, because within a five year period beginning on or about 21 days prior to his 23rd birthday on August 22, 1961, "he had come to the United States prior to attaining the age of 23 years and immediately following any such coming" he has been absent from the United States for a period of less than 12 months in the aggregate "during the period for which continuous physical presence is required." Under the circumstances the applicant was admissible as a citizen of the United States when he applied for entry on February 4, 1962. He was not required to present an immigration visa. (Emphasis supplied.)

4

The fact that the applicant established a "residence" in the United States on September 28 or 29, 1961, does not toll the requirement for retention of United States citizenship. He should make certain that there is a continuity of his actual physical presence in the United States totaling five years prior to his 28th birthday and that this five year period is not interrupted by total absences which aggregate 12 months

or more.

We conclude from the evidence before us that the applicant had continuous physical presence in the United States from September 28, 1961, to the weekend of February 4, 1962. However, assuming that he visited in Mexico every Sunday between the time he established his residence in the United States on September 28, 1961, and the date he sought to reenter on February 4, 1962, this fact would add at the most only 19 days to his aggregate of absences which is much less than the 12 months allowed by the statute.

We conclude that Congress when adopting the phrases "shall come to the United States" and "be continuously physically present" intended an entirely new basis for retention of derivative citizenship completely devoid from the technical requirement of the term "residence" which they had formerly used. An order will be entered admitting the applicant as a United States citizen. (Emphasis supplied.)

ORDER: It is directed that the appeal be and the same is hereby sustained; the applicant's admission as a United States citizen as of February 4, 1962, is hereby authorized.

MATTER OF SZEGEDI

In DEPORTATION Proceedings

A-11575482

Decided by Board August 10, 1962

"Homicide by reckless conduct" in violation of section 940.06, Wisconsin Statutes, is not a crime involving moral turpitude.

CHARGE: Act of 1952-Section 241(a) (4) [8 U.S.C. 1251(a) (4)]-Convicted of crime within five years after entry.

Respondent is 34 years old, single, male, a native and citizen of Hungary, whose only entry into the United States was on February 10, 1959 as a refugee-escapee under the Act of September 11, 1957. He was convicted on September 17, 1961 for the crime of "Homicide by Reckless Conduct contrary to the provisions of section 940.06 Wisconsin Statutes", and was sentenced to confinement in the Wisconsin State Prison for an indeterminate term of five years. At the time of hearing he was confined in this institution. The special inquiry officer found that the crime for which respondent was convicted was not a crime involving moral turpitude, ordered the proceedings terminated, and certified the case to this Board for final decision.

The District Attorney for Racine County, Wisconsin filed an information against respondent charging that on December 26, 1960 he did "feloniously cause the death of Ference Pinter by conduct imminently dangerous to him and evincing a depraved mind, regardless of human life, contrary to the form of the statute section 940.02". Respondent plead not guilty and was tried before a jury which returned a verdict of guilty of the crime of homicide by reckless conduct.2

1Wis. Stat. Ann. 940.02 provides: "Second-degree murder-Whoever causes the death of another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be imprisoned not less than 5 nor more than 25 years."

2 Wis. Stat. Ann. 940.06 provides: "Homicide by reckless conduct-(1) Whoever causes the death of another human being by reckless conduct may be fined not more than $2,500 or imprisoned not more than 5 years or both. (2) Reckless conduct consists of an act which creates a situation of unreasonable risk and

It is so well established as not to need elucidation, that this Board has no authority to retry a criminal case. In making our decision we may look only to the record, consisting of the information (or indictment), the plea, the verdict, the sentence, and the pertinent statutes, in determining whether or not the crime for which respondent was convicted was a crime involving moral turpitude, as that term is interpreted by judicial and administrative decisions. Therefore, the special inquiry officer did not inquire deeply into the circumstances behind the commission and conviction for this crime, and properly so.

However, the special inquiry officer did ask respondent what happened that resulted in the death of Pinter Ference (p. 6). Respondent answered that there were three men in respondent's room: the deceased, who was respondent's best friend, respondent, and a third person. Respondent stated that he was demanding money he had loaned to the third person, that the third person refused to pay back the money, that the deceased took respondent's shotgun, and tried to hit respondent with the gun. "In the scuffle, my hand was also broken, and while we were arguing and scuffling, the three of us, the gun went off and Pinter Ferenc was shot. I did not have the gun in my hand." The record does not show the evidence developed in the criminal proceeding.

The precise question for determination by the Board is whether or not the crime of "homicide by reckless conduct" under the Wisconsin Statutes is a crime involving moral turpitude. The special inquiry officer quoted the definition of such a crime from Wing v. United States, 46 F. 2d 755 (7th Cir. 1931), that it is an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rules of right and duty between man and man. The special inquiry officer concluded that while a man committing such an act (as that described by section 940.06) may be guilty of conduct which is contrary to the accepted and customary rules of right and duty between man and man, the crime as defined by the statute need not be accompanied by a vicious motive or a corrupt mind. The special inquiry officer says there need be no intent to cause death or inflict serious injury, and concluded that the crime for which respondent was convicted did not involve moral turpitude.

Prior decisions of the Board that arose under provisions of the codes of states other than Wisconsin, are not precisely in point, because the offense of "homicide by reckless conduct" is a statutory offense

high probability of death or great bodily harm to another and which demonstrates a conscious disregard for the safety of another and a willingness to take known chances of perpetrating an injury. It is intended that this definition embraces all of the elements of what was heretofore known as gross negligence in the criminal law of Wisconsin."