Interim Decision #2439 

MATTER OF LEAL 

In Exclusion Proceedings 

A-31283641 

Decided by Board October 15, 1975 

Respondent, who, following admission to the United States for permanent residence, 

departed to Canada with his girlfriend on a one-day trip undertaken expressly in 

connection with a scheme whereby she would obtain her immigrant visa through 

fraud—a purpose contrary to the immigration laws—did not make an "innocent" and 

"casual" departure within the ambit of Rosenberg v.Fleuti„ 374 U.S. 449 (1963). Hence, 

his case does not fall within the scope of Maldonado-Sandoval v. INS, 518 F.2d 278 

(1975), and upon his return from Canada he sought to make an "entry" within the 

meaning of section 101(a)(13) of the Immigration and Nationality Act, upon the basis of 

which exclusion proceedings are predicated. 

EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]--Immigrant not 

in possession of valid immigrant, visa or other valid 

entry document. 

ON BEHALF OF APPLICANT: Ralph M. Schelly, Esquire 

100 N. LaSalle Street 

Chicago, Illinois 60602 

This is an appeal from an order of an immigration judge finding the 

applicant excludable from the United States on the above grounds, and 

directing that he be excluded and deported from the United States_ The 

appeal will be dismissed. 

The applicant is a 26-year-old married male alien, native and citizen of 

Mexico, who was admitted to the United States for permanent resi 

dence on November 21, 1973 on the basis of his marriage to Margarita 

Oyola, a United States citizen, in Chicago, Illinois on April 7, 1973. On 

March 4, 1974, after a one-day trip to Toronto, Canada, he attempted to 

reenter the United States as a returning resident. His inspection was 

deferred on April 5, 1974 he received notice that he was being held in 

exclusion proceedings on the grounds that he may come within section 

212(a)(20) of the Immigration and Nationality Act (no valid immigrant 

visa) since it appeared that the marriage upon which his visa was based 

was not bona Me (Exh. 1). 

At the exclusion hearing, at which he was represented by present 

counsel, the applicant testified that when he went to Canada on March 

477 
Interim Dec:Sion #2439 

3, 1974 he was accompanied by a woman named Maria Rosa Flores, who 

was the mother of his child and with whom he was then living (Tr. pp. 

12-13). Under questioning by the immigration judge, the applicant 

testified furfier that he knew Maria Rosa Flores was going to Toronto 

to obtain an immigrant visa on the basis of her marriage to a United 

States citizen (Tr. pp. 52-53). The applicant also testified that he never 

lived with his United States citizen spouse after their marriage because 

she had learned that his "sweetheart," Maria Rosa Flores, was pregnant, although he claimed that he intended to live with his wife and 

denied entering into the marriage solely for the purpose of securing 

immigration benefits (Tr. pp. 52-53). 

Counsel initially moved to terminate exclusion proceedings on the 

ground that , the applicant's one-day journey to Toronto was a "brief, 

innocent and casual" departure within the meaning of the Supreme 

Court's holding inRosenberg v. Monti, 374 U.S. 449 (1963), and thus did 

not subject ;he applicant to the consequences of an "entry" under 

section 101(a)(13) of the Act upon his attempt to return to the United 

States (Tr. pp. 7-8). The immigration judge reserved ruling on the 

motion pending the receipt of evidence. 

In his decision, entered on January 28, 1975, the immigration judge 

concluded that in view of the applicant's testimony that he had been 

living with Maria Rosa Flores at the time he obtained his immigrant 

visa on the basis of his marriage to Margarita Oyola (Tr. p_ 52, lines 

12-13), the visa was thus fraudulently obtained and invalid, rendering 

the applicant inadmissible under section 212(a)(20) of the Act. In rejecting counsel's motion to terminate exclusion proceedings, the immigration judge relied on our decision in Matter of Maldonado-Sandoval, 14 

I. & N. Dec. 475 (BIA 1974), in which we held that the lawfulness of an 

alien's original admission for permanent residence can be questioned in 

exclusion proceedings in connection with an application for readmission 

to the United States, notwithstanding the Fleuti-type nature of his 

departure. 

However, subsequent to the immigration judge's decision, the Ninth 

Circuit Court of Appeals reversed our decision in Maldonado-Sandoval, 

supra, and hcld that: 

"When evidence appears, during an exclusion proceeding that the alien has been 

theretofore granted residence status and is seeking to return to the United States after 

a brief visit outside the United States, the exclusion proceeding shall be terminated. If 

there is also evidence that the alien may have fraudulently secured his residence status, 

the Immigration and Naturalization Service can thereupon institute deportation proceedings against him." Maldonado-Sandoval v. INS, 518 F.2d 278 (C.A. 9, 1975). 

Although in the above quotation the court speaks of aliens who are 

returning from "brief" visits outside the United States, it seems clear 

that it is referring to those making Fleuti-type departures, which must 

478 
Interini Decision #2439 

also be "innocent" and "casual" according to the Supreme Court's language in Rosenberg v. Fleuti, supra, which is quoted by the Court of 

Appeals in Maldonado-Sandoval v. INS, supra. We must therefore 

decide whether the applicant's one-day trip to Canada, concededly 

"brief," can also be characterized as "innocent" and "casual" so as to 

bring his attempted return to the United States within the ambit of 

Rosenberg v. Fleuti, supra, and thus within the holding of MaldonadoSandoval v. INS, supra. We conclude that it cannot. 1 

InFleuti the Supreme Court enunciated certain tests for determining 

whether an alien's departure reflects an intent to depart in a manner 

meaningfully interruptive of his permanent resident status, so that he 

would be making an "entry" upon his return. With respect to the 

"innocence" of the excursion, the Supreme Court noted that if the 

purpose of leaving the United States is to accomplish some object which 

is itself contrary to some policy reflected in our immigration laws, it 

would appear that the interruption of residence thereby occurring 

would properly be regarded as meaningful, Rosenberg v. Fleuti, supra. 

Applying this criterion to the present case, it is clear that the applicant's trip to Toronto cannot be considered "innocent." By his own 

testimony he has implicated himself in a scheme whereby his girlfriend 

would obtain her immigrant visa through fraud, and his trip to Canada 

with her was undertaken expressly for this purpose. In fact the applicant's testimony establishes that his own immigrant visa was secured 

through similar fraudulent means some months earlier. It is therefore 

difficult to view his foreign excursion as "casual," either. See Matter of 

Valdovinos, 14 I. & N. Dec. 438 (BIA 1973) and Matter of ValenciaBarajas, 13 I. & N. Dec. 369 (BIA 1969). 

We therefore find that the applicant was seeking to make an "entry" 

into the United States within the meaning of section 101(a)(13) of the 

Immigration and Nationality Act when he sought readmission on March 

4, 1974, and that the immigration judge properly refused to terminate 

exclusion proceedings, although he did so for other reasons previously 

discussed. We also concur in the immigration judge's conclusion that the 

respondent is excludable from the United States under section 212-

(a)(20) of the Act. The decision of the immigration judge will therefore 

be affirmed and the following order will be entered. 

ORDER: The appeal is dismissed. 

1We note at this point that the present case did not arise in the Ninth Circuit. Although 

we are bound by that Court of Appeals' determination in Maldonado-Sandoval with 

respect to cases emanating from that jurisdiction, our finding herein that the applicant 

deco not come within the scope of that holding permits us to reserve, for the present, the 

question of whether to apply it in cases arising outside of the Ninth Circuit. 

479