Interim Decision #1413
MATTER OF JACOBSON
In DEPORTATION Proceedings
A-11309562
Decided by Board December 4, 1904
An applicant for suspension of deportation who, following illegal entry into the
United states in 1953, was absent therefrom for a brief visit of 4 or 5 hours
to Mexico in 1959 during the statutory period of required Coutluuous 'Divalent
presence, thereby broke the continuity of such physical presence and, therefore, is statutorily ineligible for suspension of deportation under section
244(a) (1), Immigration and Nationality Act, as amended.
CUARGE:
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)7—Excludable
at time of entry under section 212(a) (9) of the Act: Burglary,
Third Degree [8 U.S.G. 1182(a) (9)1
The respondent, a native of Germany and last a citizen of Poland,
appeals from an order entered by the special inquiry officer on September 21, 1964, directing his deportation to Poland on the charge stated
in the order to show cause. The order also provides that in the event
Poland refuses to accept the respondent he shall be deported to Germany. Suspension of deportation under section 244(a) and a stay
of deportation under section 243(h) of the Immigration and Nationality Act, were denied. The appeal is directed to the denial of discretionary relief. •
The respondent, male, married, 53 years of age was lawfully admitted to the TTnited States for permanent residence in 1929. He
was convicted in 1935 in the State of New York for the crime of
burglary, third degree and sentenced to serve a term of two and a half
months to five years in the State Penitentiary. He served two years
of that sentence and was deported from the United States on November 4, 1937, on the charge that he admitted committing a crime
involving moral turpitude.
The respondent reentered the United States illegally without inspection in 1953 and has resided in the United States since that entry.
He last entered the United States in 1959 after a brief visit to Mexico.
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Interim Decision #1413
The finding of deportability is based upon the respondent's last entry
in 1959 after a temporary visit of four or five hours in Mexico.
The respondent has applied for suspension of deportation under
section 244(a) (1) of the Immigration and Nationality Act. The special inquiry officer finds that the respondent is not statutorily eligible
for suspension of deportation under section 244(a) (1) for the reason
that he has not been physically present in the United States for a continuous period of not less than seven years due to the fact that the
respondent made a brief visit to Mexico in 1959. The special inquiry
officer concludes that the "casual visit" doctrine laid down by the Supreme Court in the case of Rosenberg v. Fleuti, 1 is not applicable to
respondent's case because he has not had a lawful entry. The special
inquiry officer relies on the Board's decision in Matter of Wong, Int.
Dec. No. 1334, BIA, April 22, 1964.
Counsel urges error in the special inquiry officer's conclusion. He
reasons that section 244(a) (1) dues nut euntain any requirement that
an alien must be lawfully admitted into the United States as a condition precedent to the exercise of discretion. He maintains that the
Board's opinion of July 15, 1963, directing a reopening of this proceeding to permit application for suspension of deportation, states in sibstance that the special inquiry officer should consider the principles
laid down in the Fleuti case (supra) relative to Fleuti's brief absence
from the United States as applying to respondent's brief absence of
several hours in Mexico while attending a bull fight. It is undisputed
that but for the visit of several hours in Mexico the respondent would
meet the seven-year continuous presence requirement of the statute.
Before considering the merits of whether Fleuti is applicable in the
instant case we wish to point out that our decision of July 15, 1963_
merely calls the attention of the special inquiry officer to the Supreme
Court's recent decision (June 1963) on the issue of a "casual vise to
Mexico. We stated "while that decision (Fleuti) is concerned primarily with the definition of 'entry,' the special inquiry officer may
consider that it also affects respondent's eligibility for a grant of suspension of deportation." There is nothing in our decision which requires the special inquiry officer to accept the "casual visit" doctrine as
applicable to the respondent's case.
The issue before us concerns whether the respondent's departure to
Mexico in 1959 and reentry into the United States after a "causal
visit" in Mexico of four or five hours duration interrupts the continuous presence requirement of section 244(a) (1) of the Immigration
and Nationality Act. The case of Rosenberg v. Fleuti (supra) interpreted the term "entry" as defined in section 101 (a) (13) as "any corn-
' 83 Supreme Court 1804,
(1953).
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Interhu Decision 41413
ing 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 purpose 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 hint . . ." Inasmuch as Fleuti had
been admitted to the United States as a lawful permanent resident before his brief visit to Mexico, the Supreme Court extended the intent
exception of section 101 (a) (13) to cover a brief, casual trip to Mexico
and ruled that Fleuti had not made a, "meaningful departure" disruptive of his physical presence in the United States.
The key words in the definition of the term "entry" which made the
intent exception applicable to Fleuti are "any alien having a lawful
permanent residence in the United States." Fleuti was a, lawful permanent resident of the United States at the time he made his casual
visit to Mexico. This respondent was not. Ho entered the United.
States illegally without inspection in 1953 after having been deported
in 1937. He is not within any of the exceptions set forth in section
244 (b) and since the record establishes that he has been absent from
the United States within the seven-year period preceding his application for suspension of deportation we find that he is ineligible for
suspension of deportation under section 244 (a) (1) of the Immigration
and Nationality Act.
Counsel in the alternative seeks a temporary stay of the respondent's
deportation pursuant to the provisions of section 243 (h) of the Immigration and Nationality Act. The special inquiry officer concludes
that the respondent has not met the burden of proving that he would be
subjected to physical persecution if deported to Poland or Germany.
We affirm. the conclusion of the special inquiry officer in this regard.
The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
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