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                                                 Interim Decision *1502




                             DIMS= 'OP Ltai

                      In Deportation Proceedings
                                A-13705815
                 Decided by Board September 9, 1985
(1) Roopondont, a 29-year-old native and citizen of China, who has lived in
  the United States since his arrival iri 1951-when only 16 years of age; who
  has been regularly employed since leaving school is -1954; and who owns
  one-half interest in a restaurant which he manages and from which he:
  averages $500 monthly his established that his deportation would result in
  "extreme hardship" within the meaning of section 244(a) (1), Immigration
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  were he compelled to leave the country; .he, would lose this source of income; it is doubtful he would be able 'to ears a comparable income elsewhere; and he probably would suffer a substantial loss on his investment
  in the restaurant.
(2) Respondent's annual active duty for training in the Army National Guard
  of ' California, which was a federally recognized unit during the period of
  515 membership, can be'counte4 in the computation of the 24 -month ported
  of active•duty states in the Armed Forces of the 'United' States pursuant to
  section 244(b) ofrthe Act, as amended.
(3) The fact that respondent secured a United States passport in 1962 through
• continuation of his false claim to Unitod. Statue citizenship does not preclude a finding of good moral character.
Ceases;       -     -
  Order: Act of 1952—Section 241(04) [8 U.S.C. 1251(a) (1)]--Excludable
                      at entry under 8 U.S.C. 1182(a) (20)—No immigrant visa. •


   This case is 'before us pursuant to the special inquiry officer's '
certification of his decision dated March 31, 1965 in which he
ordered that the respondent's deportation be suspended under section.244(a) (1) of the -Immigration and Nationality Act as amended.
   Discussion as to d.eportability: The respondent , is a 29-year-old
married male, native and citizen of. China, who first entered the
United. States on September. 6, 1951 at which time he secured
admission as the son of a United States citizen who was actually

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 not his true father. The respondent obtained a United States passport in June 1962 and was absent from September "3, 1962 to December 3, 1962 when he last entered the United States and was admitted
 as a citizen. Ho was then returning to resume his residence in this
 country and was not in possession of an immigrant visa or other
 entry document required of an alien. He subsequently conceded
 his alienage and deportability, and we conclude that he is deportable on the charge stated above.
   Discussion as to eligibility for suspension of deportation: The
 respondent's application for suspension of deportation was filed on
 September 24, 1961, end he is entitled to proceed under paragraph
 (1) of section 244(a) of the•Immigration and Nationality Act since
 he is not deportable on any of the grounds referred to in paingraph
  (2). He is chargeable to the quota for Chinese persons which is
 oversubscribed and would not be able to adjust his immigration
 status otherwise than through suspension of deportation.
    The respondent's parents died in China while he was a small
 child. He was not quite 16 years old when he came to the United.
  States in 1951, and he then lived for some time with his grandfather
  who apparently had made the arrangements for him to come to the
  United States under the false identity. He attended school in Sacramento, California, until April 1954, completing the 11th grade.
 During the respondent's above-mentioned absence of three months
 in 1962, he traveled to Hong Kong where he married his wife, a
 native and °Wren of China, who is now 20 years of age. She is
 attending school in Hong Kong and is supported by the respondent.
 They have no children.
    The respondent has been physically present in the United States
 since September 6, 1951 with the exception of the absence of three
 months in 1962 and . service in Germany while a member of the
 Army of the United States. His eligibility fol. suspension of deportation depends upon section 244( b ) of the Act which requires
 honorable service for at least 24 months-in an active-duty status in the
 armed forces of the United States: The respondent was inducted
 into the Army of the United States at Sacramento, California, on
 September 3, 1958 and was transferred to the Reserve on August 17.
 1060, his total active service during.this period being one year, eleven
months and 15 days. The terminal date of his reserve obligation was
September 2, 1964, and Exhibit 3(5) shows that he was honorably
discharged from the Army of the United States on August 31, 1964.
He enisted in the Army National Guard of California on December
4, 1960 and was honorably discharged on November 1, 1963 pursuant
to his request for transfer to the -Army Reserve. During his serv-

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  ice with the Army National Guard of California, the respondent
  had 15 days of active duty for training in 1961, 1962, and 1963, a
 total of 45 days. If this 45 days can be added to the respondent's
  active service of twenty-three and one-half months, he would then
 have more than the 24 Months specified in section 244(b). It seems
 clear that his service in the National Guard was a. fulfillment of
 his reserve obligation to the United States_
    In Matter of Pero2ta, Int. Dec. No. 1290 (1960, we held that
 annual active training duty as a member of the Reserve can be con-`
 sidered active .duty in the armed forces of the United States under
 section 241 (b) since the definition of "active duty" in 10 V.S.C.
 101(22) specifically includes "annual training duty." The special
 inquiry officer was of the opinion that the same rule should apply in
 this respondent's- ease although the annual training duty occurred
 while the respondent was a member of the Army National Guard
 of California. However, that officer certified the case to this toard,
 for consideration of the question, having found the respondent
 qualified otherwise for suspension of deportation.
    One of the reserve components of the armed forces of the United
 States, as set forth in 10 U.S.C. 261, is "The Army National Guard
 of the United States". 10 U.S.C. 101(10) defines "Army National
 Guard" as that part of the organised militia of the several states
 which raced; certain requirements including that it be "federally
recognized". Exhibit 7 sliotvs that the California Army National
Guard unit, of which the respondent was a. member, was federally
recognized. during the period of his membership. 10 U.S.O. 101(11)
defines "Army National Gard df the United States"' as meaning
"the reserve component of the Army all of whose members are
members of the Army National Guard."
    In view of the foregoing, we are satisfied that the respondent's
annual active duty for training in the Arniy National Guard of
California does not differ' from ginger training in the Army Reserve. In accordance wit'? our decision in Matter of Peralta, supra,
we hold that the respondent has served honorably for over 24 -
months in an active-duty status in the armed forces of the United
States as requiredby section:244(h) of the .Immigration s and Nationality Act, and that the requirement of continuous physical presence :1
                                                                          isnotaplcbehs."
  The respondent has lived in *foment°, California, from the
time of his arrival in the United .States in 1951, and he has been
regularly employed since leaving school' in 1954. He now owns a
one-half interest in a restaurant in Sacramento in which he invested
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 $10,000 in October 1968. He manages the restaurant and his partner is the cook. The respondent averages $500 monthly from this
 business. In addition to his interest in the restaurant, the respondent has cash assets in thb sum of $1,000. He has testified that the
 restaurant would be unable to continue and would have to close if
 he were compelled to leave the United States. He would lose this
 source of income and it is doubtful that he would be able to earn a
 comparable income elsewhere. In addition, he would probably suffer a substantial loss on his investment in the restaurant. In view
 of the circumstances mentioned and the fact that the respondent
 has lived in the United States since 1951, when he was only 16
years of age, we conclude that he meets the statutory requirement
relating to proof that his deportation would result in extreme hardship to himThe respondent stated that while working in a market in 1957 he
had sold wine to a customer who turned out to be a minor and that
 a fine was paid by his employer. A search of the local police records
 and a report received from the Identification Division of the Federal Bureau of Investigation fail to disclose any other arrest or
criminal record relating to the respondent. The respondent has
stated that he -has not been a member of the Communist Party or
any affiliated organization, and an independent investigation conducted by the Service was entirely favorable to him.
   Section 244(a) (1) of the Immigration and Nationality Act requires
the alien to prove that he is, and had been during the seven years preceding his application, a person of good moral character. In Matter
of Peralta, we held that an alien, who meets the requirements of section 244(b), is not required to establish good moral character for a
specified period except from the date of the application for suspension of deportation until" its adjudication although conduct prior
thereto may be considered. Hence, we conclude that the fact that the
respondent secured a United States passport in 1962, through continuation of his false claim of United States citizenship, does not preclude a finding of goOd moral character, and we hold that he has
established good moral character for the necessary period. Because
of the favorable factors mentioned above, including the respondent's
honorable service in the Army of the United States, we also hold that
the respondent's case merits suspension of deportation in the exercise
of discretion. Accordingly, we approve the action of the special inquiry officer in granting the respondent's application.
  ORDER: It is ordered that the deportation of the alien he suspended under the provisioni of section 244(a) (1) of the Immigration .
and Nationality Act as amended:

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  It is further ordered that, if the Congress takes no action adverse
to the order granting suspension of the alien's deportation, the proceedings be cancelled, and the alien, if a quota immigrant at the time
of entry and not then charged to the appropriate quota, be so charged
as provided by law.
  It is further ordered that, in the event the Congress takes action
adverse to the order granting suspension of deportation, these proceedings shall be reopened upon notice to the respondent.




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