Interim Decision #2170 

MATTER OF JANATI-ATAIE 

In Deportation Proceedings 

A-10761136 

Decided by Board January 30, 1972, and April 30, 1972 

Decided by Attorney General October 26, 1972 

A lawful permanent resident alien who procured the necessary travel documents for himsef and his family and traveled thousands of miles for a visit of a 

month with his parents in Iran, made a conscious and intended departure in a 

manner which is meaningfully interruptive of his permanent resident status. 

Hence, upon return to the United States following his absence of a month to 

Iran, such alien made an entry within the meaning of section 101(a)(13) of the 

Immigration and Nationality Act upon which to predicate a ground of 

deportation. 

CrIARGZ; 

Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)]—Convicted of a crime 

involving moral turpitude committed within 5 years 

after entry and sentenced to prison for a period of 1 year 

or more. 

ON BEHALF OF RESPONDENT: 

Jack Wasserman, Esquire 

Warner Building 

Washington, D.C. 20004 

Gordon C. Shelley, Esquire 

1117 Forest Street 

Reno, Nevada 89502 

(Counsel of record) 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

Stephen M. Suffin 

Trial Attorney 

(Brief filed) 

BEFORE THE BOARD 

(January 30, 1972) 

The case comes forward on appeal by the Immigration and 

Naturalization Service from the decision of the special inquiry 

officer that the respondent was not deportable as charged and 

that the proceedings be terminated. 

The respondent is a 33-year-old married male alien, a native and 

citizen of Iran, whose status in the United States, after his 

marriage to a United States citizen in 1962, was adjusted to that of 

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interim Decision #2170 

a permanent resident under the provisions of section 245 of the 

Immigration and Nationality Act. The respondent and his wife 

have one child, who is a United States citizen by reason of birth in 

the United States. 

In 1965 the respondent returned to Iran to visit his parents and 

he was absent from the United States for a period of 35 days. In 

1968 he made a second trip to Iran to introduce his wife and child 

to his parents. He was absent from the United States this time for 

a period of 30 days. 

On May 8, 1968, the respondent was convicted in the Second 

Judicial District Court of the State of Nevada in and for the 

County of Washoe of two offenses of embezzlement in violation of 

the Nevada Revised Statutes 205.300, which crimes were committed during the period of March 1, 1968 to April 10; 1968. As a result 

of his conviction he was sentenced to confinement in the Nevada 

state prison for a period of three years. He served part of his 

sentence but he is now on parole. The record indicates that he has 

made restitution of the money embezzled. It is on the basis of this 

conviction that he is charged with being deportable under section 

241(a)(4) of the Immigration and Nationality Act. 

Counsel for respondent argued that on the two above stated 

occasions when the respondent returned to the United States after 

his visits to Iran he did not make an "entry" into the United 

States as the term is delineated in Rosenberg v. Fleuti, 374 U.S. 

449 (1963), and therefore the crime for which he was convicted did 

not occur within five years after his only entry, which was as a 

student on November 30, 1958. The special inquiry officer upheld 

this contention and terminated the proceedings. The Service on 

appeal contends that the respondent made an entry on each of the 

two occasions when he returned to the United States in 1965 and 

1968. This is the sole question for our determination. 

Entry is defined in section 101(aX13) of the Immigration and 

Nationality Act as follows: 

The term "entry" means any coming of an alien into the United States, from a 

foreign port ... except that an alien having a lawful permanent residence in the 

United States shall not be regarded as making an entry into the United States 

for the purposes of the immigration laws if the alien proves to the satisfaction of 

the Attorney General that his departure to a foreign port or place or to an 

outlying possession was not intended or reasonably to be expected by him or his 

presence in a foreign port or place or in an outlying possession was not 

voluntary. 

The court in Fleuti concluded that the "intent" exception contained in the above quoted provision, which became law in 1952, 

was for the protection of returning resident aliens and should be 

construed as meaning an intent to depart in a manner which could 

be regarded as meaningfully interruptive of the alien's permanent 

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Interim Decision #2170 

residence. The court stated that such intent can be inferred from 

the length of time the alien is absent, the purpose of his visit and 

whether the alien has to procure any travel documents in order to 

make the trip. The court further stated that no one of these 

criteria is conclusive and that the operation of these and other 

possibly relevant factors remains to be developed by the gradual 

process of judicial inclusion and exclusion. 

Before the Fleuti decision in 1963 the courts held the view that a 

resident alien who returns to the United States after a brief 

excursion or after an absence for any period, however brief, makes 

a new entry within the meaning of the immigration laws and 

therefore is subject to all exclusionary provisions of the statute. 

The courts held that the term "entry" included any coming of an 

alien from a foreign port into the United States whether such 

coming be the first or subsequent one and that the word "entry" 

should be construed in its ordinary meaning, i.e., any coming into 

the United States, no matter how brief the period the person was 

absent.1 

It is clear that the Fleuti decision was an attempt by the courts 

to ameliorate the harshness of these decisions. In the case before 

us now we are concerned very much with the respondent's intent 

when he left the United States. Did he intend to effect a meaningful interruption of his permanent resident status by departing in a 

manner disruptive of this status? After a careful review of the 

recent court decisions and the Board decisions relative to what 

constitutes an entry, we hold that the respondent in the instant 

case did not make an entry on the two occasions when he returned 

to his permanent residence in the United States. 

The doctrine enunciated in Rosenberg v. Fleuti has indeed been 

the subject of development and interpretation in subsequent cases 

before this Board and before the courts. The principal cases are as 

follows. 

In Matter of Guimaraes, 10 I. & N. Dec. 529 (B IA 1964), we held 

that standing alone, the fact that the alien did not intend to 

disrupt his permanent residence status was not decisive but that 

it was one factor to consider. In that case respondent went for a 

one month visit to relatives in Portugal, and we stated that it was 

clear that he did intend to depart. the United States in a manner 

which was meaningfully interruptive of his status. And, in Matter 

of Caudillo-Villalobos, 11 I. & N. Dec. 15 (BIA, 1965), affd 361 F.2d 

329 (C.A. 5, 1966), we held that where a permanent resident alien 

made numerous short trips to Mexico to appear before a clerk of 

'Volpe v. Smith, 289 U.S. 422 (1932); Chew v. Colding, 344 U.S. 590 (1952); 

Bonetti v. Rogers, 350 U.S. 001 (1058). 

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Interim Decision #2170 

the court to report and sign 'a bond book (he was convicted of a 

crime involving moral turpitude in Mexico) it clearly constituted 

an intended, meaningful departure from the United States. This 

case was decided principally on the basis of the purpose of his visit, 

which was not a casual type of thing: This Board has consistently 

held that where the purpose is to engage in an unlawful activity 

outside the United States, no matter how brief the visit to the 

foreign country, this would automatically subject the person to the 

consequences of having made an entry when he returns? In the 

instant case the respondent's departure, absence and return were 

in no way relevant to the underlying ground•of deportability. The 

purpose of his trips, which is to be considered under Fleuti, was to 

visit his parents. 

Fleuti was followed by Zimmerman v. Lehman, ' 339 F.2d 943 

(C.A.7, 1965), cert. denied 381 U.S. 925, in which a resident alien 

who had been in the United States 'for 30 years made a five or six 

day vacation trip to Canada. The court considered that the alien's 

long legal residence in the United States, the fact -that he was 

married to a United States citizen with three United States citizen' 

children, and that he had a home ' and' business in the United 

Statec, indicated' that he did not intend to disrupt his permanent 

residence, andthus he did not make an entry when he returned. 

The Zimmerman case was followed by Bregrn an v. INS, 351 F.2d 

401 (C.A.9, 1965) (decided ten months after the Zimmerman case). 

in which the alien made visits to England on two occasions, one for 

approximately seven or ten days and the second visit for seven 

days. The court remanded the case to the Board to reopen with 

instructions that further consideration be given to -the alien's 

intent at the time of departure, as the abSences standing alone did 

not subject the alien to the consequences of having made an entry 

upon return. The case was resolved in the alien's favor by the 

special inquiry officer. In a decision by this Boa!rd in November of 

1965, following the Bregman case, Matter of Quintanilla-Quintanilla, 11 I. & N. Dec. 432 (BIA, 1965), the alien visited Mexico for one 

week where he visited relatives and made a religious pilgrimage. 

We held that it was clear that he did' not intend to interrupt his 

legal residence of many years in the United , States. In that case he 

entered, the United States with his alien registration card, which, 

the Board pointed out, must be carried by an alien at all times 

anyway. Finally, in Matter of Tafoya-Gutierrez, 13 I. & N. Dec. 342 

(BIA, 1969), the alien, after being convicted of a crime in the 

2 Mcitter of Corral-F'ragoso, 11 I. &. N, Dec. 478 (BIA, I966); Matter of Wood, 12 

I. & N. Dec. 170 (BIA, 1967); Matter of Valencia-Barajas, Interim Decision No.2001 

(BIA, 1969). 

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Interim Decision #2170 

United States and placed on probation, went to Mexico the day 

following his conviction and stayed there for six months. We 

considered that this length of time plus the facts that he had no 

job to return to, and no family or property in the United States, 

constituted an intended, meaningful interruption of his permanent 

residence status. 

All the cases since Fleuti, both before this Board and the courts, 

cited above and others, indicate quite clearly that no one factor is 

conclusive as to whether there was a meaningful interruption of 

the alien's legal, permanent residence status, but they , further 

indicate that most careful consideration must be given to the 

intent factor. The- importance of the "intent" element has been 

emphasized in all recent cases regarding entry. 

It is our opinion that the respondent in the instant case did not 

make an entry when he returned from the two trips to-Iran. The 

length of time he was away was a reasonable minimum time in 

which to travel to Iran for a visit with his parents. Also, this 

Board has never held that the distance from the United States of 

the country to which the alien goes is determinative, considering 

the swift jet airplane travel available. 

It is true that the respondent did have to renew his Iranian 

passport, but here again no one factor is controlling. His intent not 

to interrupt or abandon permanent residence is indicated by the 

following facts: That his trips were of relatively short duration, 

that he had both real and personal property here, that he had an 

established home here, that he had a permanent steady job to 

which he was returning, that his wife and child, both United 

States citizens, are living with him here, and that the purpose of 

his trips was to visit his parents. 

We will affirm the decision of the special inquiry officer terminating the proceedings and will dismiss the Service appeal. 

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

dismissed. 

BEFORE THE BOARD 

(April 30, 1972) 

The Immigration and Naturalization Service has filed a motion 

asking that we reconsider and withdraw our order of January 30, 

1970; find respondent deportable; and remand to the special 

inquiry officer for further proceedings. 

The facts, about which there is no dispute, have been fully 

stated in the special inquiry officer's order and in our opinion 

dismissing the appeal therefrom. It is not necessary, therefore, to 

repeat them. 

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Interim Decision #2170 

We have given most careful consideration to the briefs filed, and 

after such consideration we hold that our decision of January 30, 

1970 correctly interprets the facts and the law relating to the 

matter before us. Accordingly the motion to reopen the proceedings will be denied. 

ORDER: It is ordered that the motion be and the same is 

hereby denied. 

BEFORE THE ATTORNEY GENERAL ON REVIEW 

(October 26, 1972) 

The Board of Immigration Appeals, at the request of the 

Commissioner of Immigration and Naturalization, has referred 

this case to me for review pursuant to 8 CFR 3.1(hX1Xiii). The 

Board has denied a motion of the Immigration and Naturalization 

Service for reconsideration of the Board's order dismissing an 

appeal by the Service from the decision of a special inquiry officer 

holding respondent not deportable. 

Respondent is a native and citizen of Iran. He was admitted to 

the United States in 1958 as a student and subsequently his status 

was adjusted,. in 1962, to that of a permanent resident on the basis 

of his marriage to a citizen of the United States. The respondent 

and his wife have one child born in the United States. 

He left the United gtates for a visit to Iran for a period of 35 

days in 1965, and again visited Iran for a period of 30 days in 1968. 

Thereafter in the latter year, he was convicted in a Nevada state 

court on two counts of embezzlement committed that year, and 

sentenced to confinement in prison for a term of three years. 

The instant proceedings were instituted by the Immigration and 

Naturalization Service under section 241(a)(4) of the Immigration 

and Nationality Act ("the Act"), 8 U.S.C. 1251(aX4), which authorizes the deportability of any alien who 

is convicted of a crime involving moral turpitude committed within five years 

after entry and either sentenced to confinement or confined therefor ... for a 

year, or move. (Emphasis added.) 

The term "entry" is defined in section 101(aX13) of the Act, 8 U.S.C. 

1101(aX13), to mean 

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 United States shall not be 

regarded as making an entry into the United States for the purposes of the 

immigration laws if the alien proves to the satisfaction of the Attorney General 

that his departure to a foreign port or place or to an outlying possession was not 

intended or reasonably to be expected by him or his presence in, a foreign, port or 

place in an outlying possession was not voluntary.... (Emphasis added.) 

The issue in this matter is whether respondent's returns to the 

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Interim Decision #2170 

United States following his 1965 and 1968 trips to Iran fell within 

the portion of the first exception to section 101(aX13) of the Act 

that is underlined above. If so, neither of the returns involved an 

"entry" within the meaning of section 101(a)(13) and respondent is 

not deportable under section 241(aX4). 

The Board's affirmance of the Special Inquiry 'Officer's decision 

that respondent is not subject to deportation is based on its 

reading of Rosenberg v. Fleuti, 374 U.S. 449 (1963), the controlling 

precedent here. That case raised the question whether a resident 

alien had made an "entry", as defined in section 101(aX13), and 

thus could be deported under section 241(a)(1), 8 U.S.C. 1251(aXl), 

as being within a certain class of aliens excludable "at the time of 

such entry." Fleuti, a Swiss national who had resided here almost 

four years, left the United States, stayed in a Mexican border town 

for a few hours and returned. The Supreme Court concluded that, 

under some circumstances, such an "innocent, casual, and brief' 

trip across a border would fall within the first exception to the 

definition of "entry" in section 101(aX13). More particularly, the 

Court construed what it called this "intent exception" as meaning 

"an intent to depart in a manner which can be regarded as 

meaningfully interruptive of the alien's permanent residence". 374 

U.S. at 462. Among the factors to be considered in passing on the 

issue of intent in this context, said the Court, are the length of 

time the alien is absent, the purpose of the visit outside the United 

States and whether the alien has to procure any travel documents 

in order to make his trip "since the need to obtain such items 

might well cause the alien to consider more fully the implications' 

involved in his leaving the country." Ibid.* 

The lower courts, as well as the Board, have had a number of 

Occasions to consider the reach of Fleuti. In de Bilbao-Bastida v. 

INS, 409 F.2d 820 (C.A. 9, 1969), cert. dismissed, 396 U.S. 802, the 

Court held there was an entry where the alien returned after a 

two-month trip which included an illegal visit to Cuba. The Court 

noted that two months is "considerably longer than the 'couple of 

hours' that Fleuti was absent" 409 F.2d at 823. Moreover, it also 

took note of the fact that travel documents were necessary for 

portions of the trip. 

The Board has found that an entry occurred • in each of three 

different years when an alien returned after spending a month's 

vacation .in Mexico visiting his family. Matter of Abi-Rached, 10 L 

& N. Dec. 551 (1964). The Board distinguished Fleuti, stating that 

* Since, however, attention had not been previously focused upon the application of §101(a)(13) to the case, the Court viewed the record as inadequate for that 

PurPose and remanded the case for further consideration of the issue. 

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Interim Decision #2170 

one month "does not fall within the Supreme Court references to 

the brief absence of one who 'merely stepped across an international border'." (p. 552) Similar reasoning was employed in Matter 

of Karl, 10 I. & N. Dec. 480 (1964), where the alien reentered 

illegally after a 10-day trip to Mexico, and Matter of Guimaraes, 10 

I. & N. Dec. 529 (1964), where a month's trip to Portugal on a 

family visit was involved. 

On the other hand, the Seventh Circuit has held that a return 

from a "harmless, innocent" vacation trip to Canada for five or six 

days was not an entry within the meaning of the statute. Zimmerman v. Lehmann, 339 F.2d 943 (CA. 7, 1965), cert. denied, 381 U.S. 

925. Similarly, in Yanez-Jacquez v. INS, 440 F.2d 701 (C.A. 5, 1971), 

the Fifth Circuit has held that a return from Mexico after a trip of 

less than one day was not an entry even though the trip itself had 

been for an illegal purpose and was not "innocent."* The Board 

took a similar position with respect to a one-week trip to Mexico 

for a family visit and religious pilgrimage. Matter of QuintanillaQuintanilla, 11 I. & N. Dec. 432 (1965). 

Apparently the only judicial decision where a trip outside this 

hemisphere of more than a week's duration was found not to 

involve an entry is Itzcovitz - v. Selective Service Board, 447 F.2d 

888 (C.A. 2, 1971). The case arose from a long history of dispute 

between the alien and both the Selective Service System and the 

Immigration and Naturalization Service. The alien sought. a declaratory judgment that a contemplated three-week trip to Israel, to 

undertake a training course required by his employer, would not 

involve an entry within the meaning of section 101(a)(13) upon his 

return to the 'United States. The . Second Circuit found that the 

alien would come within the Fleuti exception. While noting that 

the duration of the proposed trip—three weeks—would be longer 

than any previously held not to involve entry, the Court observed 

that it would still be of short duration. It stressed that the purpose 

of the trip would be to fulfill an employer's requirement for 

training and would not reflect merely personal reasons. Further, 

and perhaps most important, the Court emphasized that the alien 

was "not in the posture of having taken the trip in disregard of the 

immigration consequences; rather he * * * sought relief in advance" by bringing the declaratory judgment action. 447 F.2d at 

894. Taking these factors into account, without reference to the 

necessity of obtaining travel documents mentioned in Fleuti, the 

Court found on the particular facts that the trip would come 

within the intent exception in section 101(aX13). 

*See also Vargag-Banitelor v_ INS, 4RR F.2d 127 (C.A. 5, 1972); but see SnagDavila v. INS, 456 F.2d 424 (CA. 5, 1972). 

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Interim Decision #2170 

In arriving at the decision now before me, the Board applied a 

number of the relevant factors that were pointed out in Fleuti and 

the later precedents. It characterized the duration of the trips as 

"relatively short" and "a reasonable minimum time in which to 

travel to Iran for a visit with his parents." It emphasized that the 

alien owns property, has a home, a permanent job, and a wife and 

child who are United State' citizens. It explained that the purpose 

of the trips was to visit family and while it noted that travel 

documents were necessary for the trip, it attached little significance to these circumstances. Assessing all these factors, it decided that there was no entry because the alien did not intend to 

"interrupt or abandon" his permanent resident status. 

I cannot agree with the Board. First, the important factor of 

time weighs heavily against the respondent. In Fleuti, the duration of the absence from the United States was a few hours spent 

on the other side of an easily-crossed border. In every "no-entry" 

case since, except Itzcovitz, it was a period of time substantially 

shorter than the 30 and 35 days involved in respondent's trips. In 

finding no intent to "meaningfully interrupt" in Itzcovitz, however, 

the court emphasized that the alien was before it to obtain prior 

judicial construction of the entry provision as applied to him, thus 

affirmatively demonstrating that he had no intention to disrupt or 

interrupt his residence here. There is no such affirmative action 

on respondent's part. 

The second factor mentioned in Fleuti is the purpose of the trip. 

Except for Itzeovitz, the cases since Fleuti have laid little emphasis on this factor. In Itzcovitz, however, the court found it significant that the three-week trip was an employer's training requirement, not a personal choice of the alien. Here only the element of 

choice was present. 

Finally, the Fleuti court, noting the ease with which travel 

across the Canadian and Mexican borders can be accomplished, 

pointed to the necessity of travel documents as a factor in judging 

whether there has been an intent to depart in a manner which can 

be regarded as a meaningful interruption of permanent residence. 

Having to obtain such documents, the Court reasoned, demonstrates a much more conscious intent to depart the United States 

than a relatively simple trip over a contiguous border. Here 

respondent took steps to renew his Iranian passport prior to one 

trip and his wife had to obtain a United States passport and an 

Iranian visa. These actions involve far more than a casual "stepping across an international border." 

It is not disputed that the respondent had a home, a job and 

property in this country or that he had no intention of abandoning 

his permanent resident status. The issue, however, is whether he 

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Interim Decision #2170 

had an intent to depart within the meaning of the statute as 

interpreted by Fleuti. It seems to me that an alien who, on more 

than one occasion, procures the necessary travel documents for 

himself and his family and travels thousands of miles for a stay of 

a month or more has made a conscious and intended departure in 

a manner which is meaningfully interruptive of the alien's permanent residence in the United States. 

Realizing that any order of deportation may have serious 

consequences for the alien involved, I am nevertheless obliged to 

conclude that the reentry of this respondent into the United 

States after his trips to Iran was an "entry" within the meaning of 

section 101(a)(13). Any other result would leave little basis for 

principled decision as to when a resident alien has entered the 

country within the meaning of that provision and when he has 

not. 

For the foregoing reasons, the order of the Board is vacated and 

the case is remanded to the Board for further proceedings consistent herewith. 

225