Interim Decision #1334 

MAT= OF WONG 

In DEPORTATION Proceedings 

A-12645326 

Decided by _Marti April 99,1984 

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

Permanent residence, is ineligible for suspension of deportation under section 244(a) (1), Immigration and Nationality Act, ao amended, since he In 

precluded from establishing continuous physical presence by reason of his 

brief absences of a few hours to Canada on 4 or 5 occasions during the statutory 

period. (Rosenberg v. Pleuti, 374 U.S. 449, inapplicable.) 

CELAIIGE: 

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ]—Entered 

without inspection. 

The case comes forward on appeal from the order of the special 

inquiry officer dated January 23,1964; denying the respondent's application for suspension of deportation and ordering that the respondent 

be deported from the United States to the Republic of China on 

Formosa. 

The record relates to a native and citizen of China, 27 years old, 

male, single, who last entered the United States sometime in 1958 at 

Buffalo, New York, and was admitted upon his false representation 

that he was a citizen of the United States, exhibiting a certificate of 

citizenship which had been issued to him in support of this claim. 

He has conceded that he originally entered the United States upon 

a knowing false claim of United States citizenship. The evidence 

establishes and the respondent has conceded that he is subject to 

deportation as charged in the order to show cause. 

The case was last before us on December 18, 1963, pursuant to certification by the special inquiry officer of his decision dated June 25, 

1903. On December 5, 1958, the respondent was inducted into the 

United States Army and served until November 15, 1960. This period 

of service was 20 days short of 2 years of service and he was transferred to the Army Reserves apparently for the convenience of the 

Government. We considered the question of whether the respondent 

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was entitled to the benefits of section 244 (b) of the Immigration and 

Nationality Act, as amended, by the Act of October 24, 1962 (76 Stat. 

1247), which exempted from the requirement of continuous physical 

presence in the United States specified in the Act, aliens who had 

served for a period of 24 months in an active duty status in the Armed 

Forces of the United States. We held that respondent was not within 

the exception set forth in section 244(b) of the Act because he had 

not in fact served the full 24 months required by that section . 1 

The evidence establishes that while he resided at Buffalo, New York, 

the respondent had made 4 or 5 short visits to Canada during the 

period 1955 to 1958, and was readmitted by exhibiting his certificate 

of citizenship and falsely claiming United States citizenship. In our 

order of December 18, 1962, we remanded the case for consideration 

in the light of Rosenberg v. Fleuti, 374 U.S. 449 and for such other 

action as might appear appropriate. 

The respondent testified that on the occasion of each of his 4 or 5 

visits to Canada from December 1955 to December 1958, he traveled 

to Fort Erie, Ontario, Canada, by bus and remained there a few hours 

each time, staying overnight once for the purpose of visiting, going 

to the movies, and things of a similar nature. The ease of Rosenberg 

v. Fleuti 2 interpreted the term entry as defined in section 101(a) (13) 

as "any coming of an alien into the United. States, from a foreign port 

or place * * * 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 * * * was not intended 

by him * "." Inasmuch as Fleuti had been admitted to the United 

States as a lawful permanent resident before his brief visit to Mexico, 

the court extended the Intent exception provided for in motion. 

101(a) (la) to cover a brief, casual trip to Mexico and ruled that 

the alien in that case had not made a meaningful departure disruptive 

of his physical presence in the United States. HoweVer, Fleuti was 

a lawful permanent resident in the United States and the definition 

in section 101 (a) (13) applied to him. In the instant case the respondent had never been lawfully admitted for permanent residence and 

the Fleuti case is not deemed applicable. 

Inasmuch as the respondent is not within the exceptions set forth 

in section 244(b) of the Act, he must establish that he has been physically present in the United States for a. continuous period of not less 

than 7 years immediately preceding the date of his application on 

June 25, 1963. The record establishes that he has been absent from 

'Matter of Louis, Int. Dec. No. 1310 (December 12, 1993). 

'374 U.S. 449. 

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the United States for 4 or 5 visits during the period from December 

1955 to December 1958. The statute makes it clear that to qualify 

for suspension the respondent must have been in the United States 

without any absence, no matter how brief for the continuous period.' 

The case of J—M--D—,1 I. & N. Dec. 105, involved an alien whose 

absence from the United States during the statutory period was caused 

by his military service. The requirement of continuous physical 

presence is now dispensed with by section 244(b) of the Immigration 

and Nationality Act, as amended, in the case of an alien who now 

serves for 24 months in military service. The ease of McLeod v. 

Peterson, 283 F. 2d 180, also cited by counsel in his brief, involved an 

alien who departed upon erroneous advice of an Immigration Service 

Officer. There were present in that case peculiar equitable considerations, which excused the absence, not present in the instant case. The 

appeal will be dismissed. 

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

dismissed. 

United States ex rel. Bruno v. Savoretti, 133 F. Snpp. 3 (W.D. Mo., 1955) 

affirmed 235 F. 2d 801 (8th Cir., 1956) ; Matter of S—R—, 6 L & N. Dec. 405; 

Matter of Z—A—N—, 5 I. .E N. Dee. 298, but see Waft= v. Immigration and 

Naturalization Service, 18,645 (9th Oir., March 20, 1904). 

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