He attended the annual active duty for training required of Reserves from June 17 to June 30, 1962.

Respondent is applying for suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act as amended by Public Law 87-885, October 24, 1962, 87 Stat. 1247 (8 U.S.C.A. 1254 (Supp. 1962)) which provides for suspension of deportation of an alien who:

(1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character;

Respondent, who has not been in the United States for seven years, believes that the requirement as to length of residence is waived by section 244 (b) of the Act which provides:

The requirement of continuous physical presence in the United States specified in paragraphs (1) and (2) of subsection (a) of this section shall not be applicable to an alien who (A) has served for a minimum period of twenty-four months in an active-duty status in the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and (B) at the time of his enlistment or induction was in the United States.

The exemption from physical presence in the United States can be read in two ways: It can mean that a total presence of seven years in the United States is required but that the presence need not be a continuous one; it can also mean that seven years presence in the United States is not required. We believe that the second premise was intended by Congress and that the necessity for any definite period of presence has been eliminated.

Representative Walter who handled the legislation made the following statement on the floor of the House concerning the section:

The inclusion in the benefits of this legislation of aliens who served honorably for a stated period of time in the Armed Forces of the United States represents the incorporation into a permanent statute of a policy traditionally adhered to by the Congress in the enactment of private relief bills for the alien servicemen or ex-servicemen. (108 Cong. Rec. 22153 (daily ed. October 12, 1962.)) Since it was the purpose of Congress to minimize the number of private relief bills for alien servicemen-a purpose which can best be accomplished by taking a broad view of the legislation, and since remedial legislation should be broadly interpreted, we hold that it was the intent of Congress to eliminate any specified period of residence in the United States for a person who has the necessary honorable service in the Armed Forces.

This conclusion brings us to the question whether the respondent had honorable service "for a minimum period of twenty-four months in an active-duty status." The military report of the respondent's

transfer from active duty (Form DD-214) reveals, induction on March 11, 1959, release to the Reserves on February 28, 1961, credit with a total active service of 1 year, 11 months, and 20 days, and a lump-sum payment for 47 days accrued leave. Respondent has also supplied evidence that he complied with a Reserve obligation by attending annual active duty for training (ANACDUTRA) from June 17 to June 30 (Ex. 2). We find that the accrued 47 days of leave during his active military service may not be used to compute the period of active-duty, but that the service from June 17-30, 1962, can be used for such purpose.

The definitions of pertinent terms follow:

"Active duty" means full-time duty in the active military service of the United States. It includes duty on the active list, full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned (10 U.S.C. 101 (22)).

"Active service" means service on active duty (10 U.S.C. 101 (24)).

"Inactive-duty training" means—(A) duty prescribed for Reserves by the Secretary concerned under section 206 of title 37 or any other provision of law; and (B) special additional duties authorized for Reserves by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned.

It includes those duties when performed by Reserves in their status as members of the National Guard (10 U.S.C. 101 (31)).

Leave taken prior to discharge or separation from the service will be considered as active military service but unused accrued leave settled and compensated for under the Armed Forces Leave Act of 1946, as amended, will not be considered as active military service (AR 630–5, Sec. III par. 22 ( a )2).

We can thus see that the accrued leave cannot be credited as activeduty service but that it is proper to utilize the annual training duty. Respondent therefore has the required period of military service of the requisite character.

Our conclusion that Congress eliminated any specified period of physical presence for the qualified serviceman requires consideration of the question whether the exemption also eliminated the necessity for establishing good moral character for a specified period. In a somewhat similar situation regarding naturalization benefits awarded to servicemen, the court held that elimination of the specified period of residence which had been referred to in the general requirement that good moral character be established for a fixed period, eliminated for the serviceman, the obligation of establishing good moral character except for the period from the time of filing the application for benefits to the time of final adjudication. (Conduct prior to the date of the filing could be considered as bearing upon the question of whether good moral character within the requisite period had been.

established.) (In Re Petition for Naturalization of Suey Chin, 173 F. Supp. 510, 512–3, S.D.N.Y. (1959); see also Yuen Jung v. Barber, 184 F.2d 491, 9th Cir. (1950).) It appears to us a similar rule must apply here. In the instant case, affidavits of friends, service investigations, check of records of police and the Federal Bureau of Investigation has failed to reveal any derogatory information. Respondent is considered a person of good moral character and loyal to the United States. We believe that respondent has established good moral character. No change will be made in the order of the special inquiry officer granting suspension.

ORDER: It is ordered that no change be made in the order of the special inquiry officer.

Interim Decision #1291

MATTER OF BAUER

In DEPORTATION Proceedings

A-8599958

Decided by Board June 11, 1963

(1) Respondent, a lawful permanent resident of the United States, who in 1956 when he was 16 departed with his mother and stepfather to Germany where the latter was assigned to a tour of military duty and in 1959 when he was 19 returned to the U.S. with his parents, again under military orders of his stepfather, did not upon his return make an entry within the meaning of section 101 (a) (13) of the Immigration and Nationality, since he was an unemancipated minor under the legal compulsion to follow and accompany his parents and his departure to and presence in a foreign place was not voluntary nor intended by him.

(2) Therefore, respondent's return to the United States in 1959 does not constitute an entry on which to predicate a ground of deportation under section 241 (a) (4) of the Act on the basis of his conviction on March 25, 1960, of a crime involving moral turpitude.

CHARGE:

Warrant: Act of 1952-Section 241 (a) (4) [8 U.S.C. 1251(a) (4)]-Crime within five years after entry-Atrocious assault and battery.

The case comes forward on appeal by the trial attorney from the decision of the special inquiry officer dated December 19, 1962 terminating the proceedings.

The record relates to a native and citizen of Germany, 23 years old, male, single, who originally entered the United States for permanent residence on January 9, 1954. On March 25, 1960 in the County Court of Ocean County, New Jersey, the respondent was convicted of atrocious assault and battery with a knife committed on December 21, 1959, as more fully set forth in the indictment and was sentenced to confinement in the Bordentown Reformatory for an indeterminate term. On August 24, 1960 the special inquiry officer found the respondent deportable as charged as one who committed a crime involving moral turpitude within five years after his last entry and was sentenced to confinement for a year or more within five years after his alleged last entry on August 31, 1959. On January 17, 1962 counsel

for the respondent filed a motion for reopening and reconsideration on the grounds (1) that there was not sufficient proof upon which the special inquiry officer could properly determine the question of the respondent's entry or reentry into the United States; (2) that the respondent did not enter or reenter the United States within five years of the commission of the crime of atrocious assault and battery on December 21, 1959; and (3) that the respondent desired to produce proof that his entry into the United States was not an entry pursuant to the definition of section 101 (a) (13) of the Immigration and Nationality Act. On January 25, 1962 the special inquiry officer granted the motion to reopen and on November 16, 1962 granted the government's motion to reopen in connection with an application for adjustment of status under section 245 of the Immigration and Nationality Act. According to respondent's birth certificate he was born on February 18, 1940 (Ex. 3) at Schweinfurt, Germany although his testimony is to the effect that he was born February 18, 1942 (p. 17). We will accept the birth certificate as being the correct date of birth. His father was killed in the Second World War and his mother married a United States citizen, a sergeant in the United States Army in October 1953. The respondent, his mother and stepfather came to the United States in January 1954 when the respondent was admitted for permanent residence. He resided with his stepfather and mother. In August or September 1956 the respondent's stepfather was assigned to a new tour of duty in Germany and the respondent and his mother were included in the orders and accompanied the respondent's stepfather to Germany (Ex. 5). The respondent lived with his stepfather and mother, went to high school and to the University of Maryland Extension Branch and returned to the United States in August or September 1959 when his stepfather was transferred to this country under military orders. The respondent was 16 years of age at the time he departed and 19 years of age when he returned. During all this period he was an unemancipated minor, in the custody and subject to the control of his stepfather. It is believed that the New Jersey statute and New Jersey cases cited by the trial attorney confirm the conclusion that the respondent, as an unemancipated infant, was under a duty to obey the order of his parents, in this case the stepfather.

The issue in the case is whether the respondent made an entry into the United States upon his return from Germany. The term "entry" is defined in section 101 (a) (13) of the Immigration and Nationality Act, 8 U.S.C. 1101 (a) (13) as follows:

The term "entry" means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the

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