Interim Decision #1444 

MATTER OF TitONG 

In Deportation Proceedings 

• A-13128478 

'Decided by Board Apra7 p,1965 

Respondent, who has never been lawfully admitted to the United States for 

permanent _residence, is statutorily ineligible for suspension• of deportation 

under section 244(a) (1), Immigration and Nationality Act, as amended, 

since he is precluded from establishing continuous physical presence by 

reason of a 2-hour absence to Mexico in 1961 during the statutory period.* 

tcfrtielman v Insmivrativm and Scauraticatirm Service, 829 Ir.28. 812 (1984), 

held inapplicable since respondent was not lawfully admitted for permanent 

residence.] 

CHARM • 

. • ' - 

Order: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)3—Excludable 

• at entry under section 212(a)' (20) [8 U.S.O. 1182 

• (a) (20)3—No immigrant visa. 

' The issue is .whether respondent has been physically present in 

the ;United States for a continuous period of not less than seven 

years from the date of his application for suspension of deportation. 

llespondent, a 29-year-old single male 'alien; a native and citizen 

of China, illegally entered the - United States on August 24, 1951 

upon his false claim to United States citizenship; he has been in the 

United States continuously except for a visit of about two hours to 

Mexiio in November 1961. He voluntarily appeared before the Service in 1962, and„confessed that he wa:s illegally in the United States; 

these deportation proceedings were brought. The special inquiry officer found respondent deportable, granted voluntary departure, denied suspension of deportation, and certified his order to the Board 

for final decision. No change will be made in the special inquiry 

officer's order. 

*Overruled; see 858 2'.2d 151 (C.A. 9, 1968), wherein the Court held that 

applicant's brief visit to Mexico did not bar him from consideration for 

suspension of deportation as a matter of law • 

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Interim Decision #1444 

With one exception, an applicant for suspension of deportation 

under section 244(a) (1) of the Act is required to establish that he 

has been physically present in the United States for a continuous 

period of not less than seven years immediately preceding the date 

of his application. The exception relates to an alien who has served 

honorably for a minimum period "of twenty-four months in an active duty status in the Armed Forces" (section 214(b) of the Act 

(8 U.S.C. 1254(b)). The respondent attempted to establish that he 

was within the exception. He was inducted into the Armed Forces 

on August 8, 1958 and was transferred to the Reserves on July 30, 

1960. He served in an active duty status for a total of one year,11 

months and 23 days; this service is several days short of the 24 

months required to give respondent the exemption he claimed (Matter of reralta, Int. Dec. No. 1290 (1960 ; Matter of Louie, Int. Dec. 

No. 1310 (1963)). Respondent must, therefore, establish that he 

meets the requirement of section 244(a) (1) concerning continuous 

physical presence. 

The record establishes by affidavits submitted by the respondent, 

army record, and Service investigation, that respondent has been 

physically present in the United States for a continuous period of 

not less than seven years immediately preceding the date of his application (August 1, 1963) except for his two hour visit to Mexico in 

November 1961. 

We have held than any absence in the 'required period, no matter 

how brief, will break the continuity of physical presence of an alien 

except that a "casual visit" as that term is explained in Rosenberg v. 

Fleuti, 347 U.S. 449 (1963), will not break the continuity of physical 

-presence if the alien had: been lawfully admitted for permanent residence (Matter of Jacobson, Int. Dec. No. 1413 (1964) ; Hatter of. 

Wong, Int. Dec. No. 1384 (1964). The effect upon our rule of a. 

decision in the judicial circuit in which the respondent resides must 

be considered. In jitadmuin v. Immigration and Naturalization 

Sorpice, 329 F.2d 812 (9th Cir., March 26, 1964), an alien whose 

commission of crime Prior to his application for a, visa made him 

ineligible for the issuance of a visa, nevertheless received a visa and 

entered the United States in 1955 upon suriender of the visa. He 

remained in the United States continuously except that in 1958 he 

spent five days of a vacation trip in Mexico. He was found deport' 

able because his original entry had been illegal and he was refused 

suspension of deportation & the ground that his vacation trip broke 

the continuity of his physical presence. On judicial review, the court 

finding that Fleuti held that the return of a permanent resident 

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Interim Decision #1444 

alien after a departure -which was flat "intended" was not to constitute ari "entry" as that term was defined by section 101(a) (13) of 

the Act (8 U.S.C. 1101(a) (13) ) and pointing to the protection 

from unsuspected risks afforded "the resident alien" rejected the 

contention that there is a distinction between the making of an 

"entry" and the concept of continuous physical presence and returned the case to the special inquiry officer to determine whether 

Wadman's departure had been a "sig-nifictint one under the guides 

laid down in Fleuti" (at sn). 

The court did not specifically discuss whether or not its determination applied to en alien whose original entry was illegal. Since the 

circuit court's analogy was to a situation which concerned a legally 

resident alien, since the court spoke of the resident alien and did not 

specifically state that its ruling applied to one who never had the 

status of a legal resident alien, since the court specified that the 

"guides laid down in Fleuti" were to be applied guides which concern legally resident aliens, since the respondent has never been a 

legally resident alien, and since Wadman seeks to create an exception, 

we believe it proper to interpret Wadman narrowly and hold that it 

applies only to the alien who had been legally admitted for permanent residence and subsequently became deportable (cf. Zimmerman 

v. Lehmann, 889 F.2d 948 (1965) ). The respondent having never 

had the status of a legally resident alien (section 101(a) (20), 8 

U.S.C. 1101(a) (20) ), we will apply the rule in Matter of daeobson, 

supra, and hold that respondent has failed to establish that he 

possesses the continuous physical presence required by law of an 

applicant for suspension of -deportation. 

,Apart from finding the respondent ineligible on the ground that he 

lacks the required physical presence, we would have no reason to rule 

the respondent either ineligible for relief or undeserving of relief. 

. ORDER: It is ordered that no change be made in the -order of the 

special inquiry officer. . 

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