Interim Decision #1412 

MATTER OF LOZA-BEDOYA 

In DEPORTATION Proceedings 

A-7985292 

Decided by Board November 19,1,96'4 

(1) Respondent, who did not have pending on the effective date of the Immigration and Nationality Act an application for seventh proviso relief, is now 

ineligible for a mow pro tunc waiver of such relief since the seventh proviso 

to section 3 of the Immigration Act of February 5, 1917, as amended, neither 

conferred status nor conveyed rights and, therefore, did not come within 

the savings clause (section 405 (a) ) of the 1952 Act. 

(2) Respondent, who, following deportation in 1962, was absent from the United 

States for two weeks during the statutory period of required continuous physical presence, broke the continuity of such physical presence and, therefore, 

is ineligible for suspension of deportation under section 244(a) (1) of ale 1012 . Act, as amended. 

CHARGE : 

Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 251(a) (2) ]—Entered 

out inspection. 

This is on appeal from the order of the special inquiry officer finding respondent deportable on the ground stated above and denying his 

applications for relief except the one for voluntary departure. The 

appeal will be dismissed. 

Respondent, a 35-year-old married male, a native and citizen of 

Mexico, believes he is eligible for the legalilation of his entry because 

of his long residence in the United States. His residence, started by 

illegal entry in 1941, was interrupted by his deportation in July 1953; 

it was resumed by his illegal return about August 1953, and except for 

a short visit to Mexico in 1955 and in 1057 was maintained until he 

was deported on March 8, 1062. About two weeks later he again 

entered illegally. His wife, a United States citizen residing in the 

United States whom he married in 1961, sought her Congressman's 

help in obtaining legal residence for the respondent. In August 1962, 

time Congressman advised her by telegram to have respondent proceed 

immediately to the American Consulate in Mexico. Respondent ap778 
Interim Decision #14I2 

parently followed the advice and for about the next eight months 

stayed in Mexico apparently in the hope of obtaining a visa. The 

American Consul ultimately denied respondent's application for a 

visa, apparently finding that his conviction in 1951 for assisting the 

unlawful entry of Mexican nationals brought him within section 

212(a) (31) of the Act which makes ineligible for the issuance of a 

visa, an alien who for gain encouraged another alien to come to the 

United States illegally; the respondent •returned illegally on May 3, 

1963 to join his family. On November 19, 1963 he was cOn•icted for 

having entered the United States without permission after having 

been deported. In the present deportation proceedings, respondent 

is charged with being deportable as one who had entered the United 

States without inspection on May 3, 1963. 

Respondent admitting that he is deportable as charged, but pointing 

to his domicile in the United States since 1911, to the extreme herddlip 

deportation would bring to him, his wife and his children who are 

all dependent upon him, and pointing to the fact that he is a responsible 

self-employed member of the community, urges that his stay be 

legalized. He believes several laws exist under which this legalization 

can be accomplished. 

IVe do not believe the respondent is eligible for relief under any of 

the laws relied upon. The first contention couples section 219 (0 of the 

Act and its predecessor, the 7th proviso to section 3 of the Act of 

February 5, 1917. Section 212 (c) of the Act authorizes the admission 

of an inadmissible alien returning to a lawful residence; the 7th proviso authorized the same relief (except as to documentary grounds) 

to an alien with seven years' residence whether the residence was lawful or not. Counsel contends that respondent had been eligible for 

relief under the 7th proviso, that he, therefore, had a right which was 

saved by section 405(a) of the Immigration and Nationality Act 

and that the 7th proviso can now be used to legalize his residence as 

of December 24, 1952 when the Immigration and Nationality Act 

took effect: The contention continues: Respondent's residence having 

thus been legalized, he is eligible for relief under section 212(c) of 

the Act and by virtue of its provisions can be considered as having 

been lawfully admitted upon the occasion of each of his returns from 

Mexico and, therefore, considered not, deportable. The contention 

must be rejected. Even if 7th proviso relief could be granted 9tnlic 

pro tune; it would not be of avail to respondent because it could not 

cure the lack of documents which made him inadmissible to the United 

States on the occasion of each of his entries (Matter of L—, 4 I. 

Dec. 463). Moreover, respondent had no application pending under 

the '7th proviso during the time it as in existence; the 7th proviso 

itself conveyed no rights and conferred no status; it, therefore., did 

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Interim Decision *1412 

not come within the savings clause (Cadby v. Savoreta, 256 F. 2c1 439 

(5th Cir., 1958) ). Since respondent is not a lawful resident of the 

United States lie could not be granted relief under section 212(c) 

of the Act. 

On August 11, 1964, the special inquiry officer considered respondent's application for suspension of deportation under section 244(a) 

(1) of the Immigration and Nationality Act (8 U.S.C. 1254 (a) (1), 

Supp. V) and_ denied it on the ground that the respondent who had 

been outside the United States for two weeks after his deportation on 

March 8, 1962, on visits to Mexico in 1955 and 1957, and from August 

1962 to May 1963, could not, establish, as he was required to by 

the Act, that he had "been physically present in the United States 

for a continuous period of not less than seven years immediately preceding the date" of his application. In denying the application, the 

special inquiry officer followed the Board's rule, that any voluntary 

absence destroys the continuity of residence required by the statute. 

Counsel, however, contends that the respondent's departures from the 

United States did not interrupt the continuity of his physical presence as that, term is defined in the case of W adman v. Immigration and 

Naturatiz'ation Service, 329 F. 2d 812 (9th Cir., 1964). 

Whether or not the TV adman rule applies to one like the respondent 

whose original entry was 1.1111a wful has not been clarified; however, 

assuming that an alien could come within the W adman rule although 

he entered illegally, we do not believe the respondent can profit 

thereby because his absence in 1962 was the result of a deportation 

and we do not believe that Wadma-n can be extended to include such 

an absence. The Supreme Court, considering the effect of an absence 

under an order of deportation, of one who returned and applied for 

discretionary relief which required him to establish that. he had FPsided "continuously" in the United States for a certain period, stated 

"0* * one who has been deported does not continue to have his residence here, whatever may be the significance of other factors in the 

absence of a valid deportation. * * It would be quite. impossible 

to consider that a deported alien, whose reentry into this country 

within a year of deportation would be a felony, nevertheless continues 

to reside in this country." .11vica v. Egperdy, 32 L.W. 4259, 1291-2, 

March 30, 1961. 

The pivotal nature of the 1962 deportation has brought it under 

attack by counsel. Counsel contends that there was a lack of due 

process in the deportation proceeding in that the respondent was not 

advised of his right to apply for discretionary relief. The regulation 

required the special inquiry officer to inform an alien of his "apparent" 

eligibility to apply for relief (S CFR 212.17). We (1.0 not, have a 

copy of the hearing which resulted in the deportation order of March 

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Interim Decision #1412 

8, 1962; however, even if counsel is right that respondent was not 

notified of suspension of deportation, we would not find that serious 

error was committed because there was no obligation upon the special 

inquiry officer to inform the respondent who appeared to be ineligible 

for suspension of deportation at that time. Prior to the decision in 

Madman, on March 26, 1964 it was the rule that. an alien who had 

voluntarily left the United States temporarily could not be considered 

as physically present in the United States for the continuous period 

required for suspension of deportation (Arrellano-Flores v. Hoy, 

262 F.2d 667 (9th Cir., 1958) ; see Montalban v. Rogers, 262 F.2d 

923 (CADC, 1959) ; U.S. ex rel. Bruno v. Sweet, 133 F. Stipp. 3, 6-7, 

W.D. 11/o. (1955), aff'd without passing on point 235 F.2d 801 (8th 

Cir., 1956) ). At the time of the hearing, respondent having been 

absent from the United States on three occasions in the ten-year period 

fur which he would then have to establish continuous: physical presence (sec. 244(a) (4) of the Act ; 66 Stat. 214) one absence having been 

the result of a deportation (1953) was not considered eligible for suspension of deportation. Since there was no apparent eligibility, there 

was no obligation on the part of the special inquiry officer to inform 

the respondent of the right to apply for suspension of deportation. 

Respondent has failed to establish he is eligible for relief which 

■■ permit him to remain in the United States_ 

Respondent takes issue with the special inquiry officer's denial of 

his application for permission to reapply for admission to the United 

States after arrest and deportation. The special inquiry officer has 

pointed out the grant of relief would be a useless gesture since the 

respondent is ineligible for the issuance of a visa. The application 

was properly denied. 

Sines the consul refuses to issue a visa to respondent and since he 

is ineligible for adjustment under the immigration laws, it would 

appear that only Congress, if it so desires, can help respondent adjust 

his status to that of a lawful permanent resident. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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