Interim Decision #1551 

Magma or FLORES-GONZALBZ 

. A-6819970 

, In. Deportation Proceedings 

Decided by Board January 20, 196V 

Since the Department of the Army has not taken any steps to revoke ab initio 

the honorable discharge issued respondent, an applicant for suspension of 

deportation who has served a minimum of 24 months in an .ftetiva-duty 

status in the Armed Forces of the United States" following which he was 

separated "under honorable conditions," he comes within the purview of 

• section 244(b), Immigration and Nationality Act; as amended, notwithstanding gnat under Army regulations be may be dropped from the rolls Of 

the army as a result of his conviction which forms the basis .fOr his 

deportation. • • • 

• - • CHARGE: 

' Order: Act of 1952—Seetion 241(a) (11) 18 U.S.C. 1251(a) (11))--Conviction for possession of marihuana. 

The respondent, a native and citizen of Mexico- appeals from an 

order entered by the special inquiry officer on October 4,- 1965 

directing his deportation 'to. Mexico on the charge that he has been 

convicted of a law relating to the illicit possession-of marihuana in 

violation of Article 725(b) of the Texas Penal Code. Deportability 

on the stated charge is conceded. The appeal is directed to the 

denial Of the respondent's application for suspension Of deportation 

filed pursuant to section 24t(b) of the Immigration incl. Nationality 

Act. 

The respondent, an unmarried male alien, -28 years of age was 

admitted to the United States as an immigrant at the port of El 

Paso, Texas on November 29, 1947. He' as convicted on- February 

18; 1968 in Bexar County, Texas for the offense of "possession of 

Marihuana in violation of Article 725(b) of the Texas Penal, Code. 

The respondent concedes that he is deportable as charged in the 

order to show cause. 

The respondent has applied for suspension of deportation pursuant to section 244(a) (9) of the -Immigration and Nationality 

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Interim Decigion 41551 ' 

Act. Section 244(a) (2) provides, inter 924 that an alien who is 

deportable as a narcotic offender must establish that he has been 

physically present in the United States for a "continuous period" 

of not less than 10 years immediately following the commission of 

the Act constituting the grcitmd, for deportation and during this 

period he must establish that he has been a person of good moral 

character. Since the Siidance establishes that the respondent was -

- charged with possession of marihuana, on October 28,,1962, he cannot qualify for suspension of deportation under section 244(a) (2) 

; of the Immigration and Nationality Act Unless by reason of his 

"active-duty status in the Armed Forces of the United States" he ' 

comes within the exemption from the "continuous physical presence" 

requirement provided by section 244(b) of the Immigration and 

Nationality Act? The record establishes that .the respondent was 

inducted into the armed- services at San Antonio, Texas on April 

-26, 1960; - 

The special inquiry officer finds that the respondent served in an. 

"active-duty status in. the Armed Forces, of the United States" for 

a -period of sufficient duration' to qualify -under section 244(b) of 

the Immigration and Nationality Act. The special inquiry officer 

concludes however that since the respondent was dropped from:the 

rolls of the Army on January 19, 1965 by reason of his conviction 

for possession of marihuana he is statutorily ineligible for relief 

under section 244(a) (2) because he was not separated from the 

Armed' Services under honorable conditions. The Service has filed 

a brief supporting the szecial inquiry officer's conclusion and orally 

argued the case before this Board. _ The special inquiry officer and 

' the Service reason that there is a continuing -responsibility on the 

part of the respondent to comply -with the discharge provisions of 

section 244(b) notwithstanding the fact that he (respondent) served 

the required two years of "active-duty status" in the Armed Forces 

and was discharged "under honorable conditions" prior to the time 

'Section 244(b) of the Immigration and - Rationality Act reads as follows: 

(b) The requirement of continuous physical presence in UM United States 

specified in paragraphs (1) and (2) of subsection (a) of this section shall not 

be applicable to an alien who (A) has served for a minimum period of twentyfour months in an active-duty status in the ArMed Forces of the United States 

and, if separated from such service, was separated under honorable conditions, and (B) at the time of his enlistment or induction was in the United 

States. 

'The evidence establishes that the respondent wad inducted into the Armed 

Services on April 26, 1960 and discharged "under honorable conditions" on 

May 15, 1962 when he was transferred to the Army Reserves. 

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illthrkrtL P.04sioa 44451 

that he committed•the act which serves as the -basis for.his deportation. . 

Counsel foi the respondent-urges rarrbr lunthe Conclusion..of the. 

special inquiry officer because (1) the•ecord 'id completely devoid of 

any evidence showing that the tespondent•was- notgeeparated-under 

honorable conditions and (2) there is no 'evidence of record thatrespondeit was 'dropped from the rolls' of thi3 1Atiny" itecerfiance with the procedure set forth in piregratih 10 fof gfmy Ipegulations 185478.3 

We find nothing in the .statate ;or 'tile'Preckents“tited b? the 

special inquiry officer ine,the Tkial rig:Aix:es' a 

finding . .of inelig,ibility' under' t4e /0114; 1s -(A .segti* 

244(b): after the :alien has billy serVed...the xequired...two Tian 'Of 

"active-duty status in the Armed Forces o f United' States"; • 

has been. discharged from the Armed Imes, "under honorable conditions"' and ,then after a lapse oC some two and one half years is 

dropped •frem•the rollsiof the Army .Reserves by reason: of a conviction of a narcotic charge xxonmittostafter the completion of the 

required two years of active-duty :status;' Section.244(b). provides 

in substance that the.requirement of 10 years of .physical presence 

after the commission of a proscribed 'act. which render§ an alien 

-deportable is waived in the case of an applicant for suspension .of 

deportation Who "lies served for a minimum peried'uf.24 Months 

in an active-duty. states in the Armed' Forces of the United' States 

.and if separated from- such service' the discharge'was honor-

-able conditions." .(EmpliFi's "added.) ' The resp'ondentimeets these 

requirements. The term "if separated- front- such amide' refers 

to the completion "of "94 months of action-duty status in gm Armed 

.Forces of the United States" following which.there Wad a -Sepal:afion "under honorable conditions." (Emphasis added.) 

Our decision in this regard is not contrary to the conclusion 

reached Matter of Peralta, Int. Dec. No. 1290, BIA, gk.ne.19, 

1968. the definitions- of the terms "active duty" and ; 

''Paragiqh 10 of Array Regulations 135-178, provides: - 

10. Dropping from the rolls A. reservist sentenced to confinement in a 

Federal or State penitentiary or correctional instittitIon after having been 

found guilty of an offense by a civil court and who* sentence has become 

Anal, whether or not actually confined, may be dropped from the rolls of the 

army. This act will be accomplished in special or letter orders. 

Waited States 47. Rosner, 249 F.2d 49 (C.A. 2, 1957); (Xenia v. Brooker, 

173 F. Stipp. 493; Natter of Perolta, Int. Dee. No. 1290; Matter of Woo, Int. 

Mee. No. 1297. 

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Interim Decision #1551 

"active service" 5 set forth in 10 United States Code 101 (22 & 24) 

we -held that "annual training duty" while a member of the Reserves 

could be credited in completing the 24-month period of "active-duty 

status" in the Armed Forces. There was no dispute with regiird to 

the issue of whether there . was an honorable discharge in the 

Peralta case (supra). 

Pursuant to 10 United States Code 101 (29)° the phrase "may 

be dropped from the rolls of the army" found in Paragraph 10 of 

Army Regulations 135-178 must be used in a permissive sense and 

there is nothing in this record to show that the Department of the 

Army has taken. any steps to revoke ab ihitio the honorable discharge 

issued to the respondent on May 16, 1062. Accordingly, we find the• 

respondent statutorily eligible for suspension of deportation under 

the provisions of section 244(a) (2) of the Immigration and Nationality Act. 

The respondent on or about June 25, 1964 was convicted of an 

aggravated assault on a female and sentenced to 90 days in jail. 

His probation for the narcotic charge was revoked on September 24, 

1964 and at the time of _the hearing in June of 1965 he was serving 

a two-year sentence at the Texas Department of Correction Facility 

at Sugarland, Texas. -The respondent must establish good ;moral 

character from the date of the filing of his application for suspen-

.. 

awn. of deportation up to and including the 'final adjudication of 

the said application. Matter of Peralta, Int. Dec. No 1290, BIA., 

June 19, 1963. We will remand the case to the special inquiry 

officer for a reappraisal and revaluation of the evidence concerned 

with the respondent's application for suspension of deportation and 

a decision as to whether suspension of deportation is warranted as a 

matter of discretion. An appropriate order will be entered. 

ORDER; It is directed that the case be remanded to the special 

inquiry officer for further decision in accordafice with the foregoing 

opinion. 

5 Section 101 Definitions . . . the following definitions apply in this title: 

(22) "Active duty" means full-time duty in the active military service of 

the United States. It includes duty on the active list, full-time training duty, 

annual training duty, and attendance, while in the active military service, at a 

school designated as a service school by law or by the Secretary of the military department concerned. 

(24) "Active service" means service on active duty. 

• Section 101 Definition. . . . the following definitions apply in this title: 

(29) "May" is used in a permissive sense. The 'Words "no person may 

mean that no person is required, authorized, or permitted to do the act prescribed. 

488