GEE

                                                Interim Decision #P1593




                             NUTTER OF GEE
                      In Deportation Proceedings
                               A-13705060
                    Decided by Board May 91, 1066

The requirement of section 244(b), - Immigration and Nationality Act, as
 amended, of a minimum period of 24 months in an active-duty status in the
 Armen Forces of the United States is satisfied by an applicant for suspension of deportation who served in an active-duty status in the Army following induction on February 3, 1956 until discharged January 31, 1958, and
 whose military record, by direction of the Secretary of War, was subsequently corrected to reflect Continuous active duty until February 2, 1938.
Came:
  Order: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)3—Excludable
                       at time of entry—no immigrant visa.


   DISCUSSION AS TO DEPORTABILITY: The respondent,
 a native and citizen of China has been found deportable under the
 provisions of section 2d1(a) (1) of the Immigration and Nationality
 Act (8 U.S.C. 1251(a) (1)) as an alien who at the time of entry
 was within one or more of the classes of aliens excludable by the
 law existing at the time of such entry, to wit, an alien immigrant
not in possession of a valid unexpired humigration visa,, reentry
permit, border crossing identification card. or other valid entry document and not exempted from the possession thereof by the said Act
 or regulation made thereunder pursuant to section 212(a) (20) of
the said Act. An order entered by the special inquiry officer on
January 11, 1966 suspends the respondent's deportation under the
provisions of section 211(a).(1) ,of the Lnmigration and Nationality
Act, as amended, (8 U.S.C. 1254(a) (1)). The case has been certified to the Board of -Immigration Appeals for final decision because
it is one of first impression wherein the Department of the Army
has corrected a military record of service thereby enabling the respondent to avoid the seven years of continuous physical presence
in the United States for the period preceding the date of his appli-
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cation for suspension of deportation as provided in section 244(a) (1)'
of the Immigration and Nationality Act (8 U.S.C. 1254(6)(1)).
   The respondent was admitted to the United States at Honolulu,
Hawaii on October 13, 1952. He was admitted to the United States
upon a false claim of citizenship. He has lived in the United States
continuously since his entry with an exception of a, trip to Formosa
from June 14, 1960 to September • 9, 1960. He last entered in
September of 1960 to resume his residence in the United States but
did not posseSs an immigration visa. The evidence affirmatively
establishes the respondent's deportability as charged in the order
to show cause.
   DISCUSSION AS -TO ELIGIBILITY FOR SUSPENSION
OF DE1101tTATION: The respondent was married in Formosa
on August 18, 1960: Upon 4i,s. return to the United States he executed a visa petition on behaTf of his wife in -which he falsely swam
that he was a citizen of the United States. The respondent's wife
was admitted to the United Stales on February 22, 1961. They
were divorced on march 2, 1965 and he testified that he does not
know her present whereabouts, but believes that she is now in
Formosa. The respondent traveled to Formosa on a United States
passport which he obtained by falsely swearing that he was a
United States citizen.     •
  The character investigation conducted by the Immigration Service
reveals, nothing adverse to the respondent. The record contains
affidavits of two citizens of the United States who have known the
respondent since 1952 attesting to his good moral character. Local
police and Federal records do not disolose anything adverse to the
respondent.
  The respondent is employed in a laundry and earns $75 a week.
He has assets totaling some $5,000. He supports his mother who
resides in Hong Kong. His father is deceased. •The respondent
served honorably in the United States Army from February 3, 1956
'midi midnight of February 2, 1958 at which time he ,was relieved
from active duty and transferred to the United States Army Reserve
to complete his reserve obligation.
  The respondent maintains that his. deportation would result in
a. hardship to him because he came to this country when he was
18 years of age and has spent most of his adult life in the United '
States. He alleges that it would be very difficult for him to obtain
a job outside of this country and that he has become accustomed
to the way of life here. The special inquiry officer concludes that
the respondent's deportation would in fact result in extreme hardship to him and we affirm.
  Section 244(a) (1) of the Immigiation and Nationality Ad pro-
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*ides, =lung' other things, that•In be; eligible for suspension. of
deportation an -alieremust havebeen physically present in therUnited
States fora continnoui period of not less than seven years.' Section
244(b) provides, however, that the physical - presence requirement
shall not be 'applicable to an alien who has served for a minimal
period of 24 .months in an active duty status in the armed forces
of the United•States. When the case was originally considered by
the special inquiry officer, in July of 1965, the respondent's militaryrecord showed that he was drafted into the United States Army
On February 3, 1956 and served in an active duty status until 'he
was discharged. on January 31, 1958. Upon discharge he was transferred to the United States Army Reserve and attended reserve
duty training meetings'on June 19 1 20, and 24, 1958 and on August
7, 21, and 28, 3.958 for three hour mighf sessions at which time he
was required to be in uniform.     The special inquiry officer noting
that the respondent's active duty in the Army was two days short
of the 24 months required by section 244(b) (supra) found him not
eligible for suspension of deportation.
  Thereafter, upon consent of the resp'ondent's counsel and the trial
 attorney, the special inquiry officer on January 10,' 1966 entered
 an order which provided that the amended record of the respondent's military service be made a part of thee -record of the deportation proceedings. Tty.additional evidence which amends the record
 of the respondent's military service is a decision by the Secretary
-of the Aimy which reads as follows:
  "AG 20b—LEE, BRIAN H.
          US 58 265 488
           MEBIORANDUM FOR THE ADJUTANT GENERAL
  "Raving =Droved the findings, conclusions and recommendation of the Army
Board for Correction of Military Records, and under the provisions or 1.0 u.s.c.
1552, it is directed:
  "That all of the Department of the Army reecirdeof BRIAN H. LEE be
corrected to show:
    "a. that his relief from active duty on - 31 January 1958 was, and is, void
    and of no force or effect; and
    "b. that be was continued on active duty unit' 2 February 195S, at which
    time he was relieved from active duty and concurrently transferred to the
    United States Army Reserve to eumplete his Reserve obligation.
                                          (Signed) Stanley R. Resor
                                                    Stanley R. Resor
                                                    Secretary of the Army"
  The_, additional evidence -which has been inserted in the record
affirmatively establishes that the respondent now meets the reqUirements for suspension of deportation under the provisions of section '244(a) (1) of the Immigration and Natidnality Act since he
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qualifies for the exemption provided by section 244(b) of the same
Act. The special inquiry officer, however, states in his opinion
"by reason of the provisions of subdivision 244(b) he (respondent)
is not required to present evidence of good moral character for any
specified period" The 'specie' 1 inquiry officer notes the fact that
the respondent fraudulently obtained a United States passport and
fraudulently executed a visa petition on behalf of his wife. The
special inquiry officer found the respondent to be a person of good
moral character. Another factor warranting the grant of suspension of deportation is the respondent's honorable service in the
United States Army.
  We affirm the grant of suspension of deportation in this particular case. However, we do not agree with the special inquiry officer
that section 244(b) relieves the respondent from the requirement
of establishing good moral character. This issue was before us in
Matter of Peralta, 10 I. Ss N. Dec. 300,          June 19, 1963. We
held that -whereas an applicant for suspension of deportation within
the provisions of section 244(b) may be exempt from establishing
good moral character for the period coextensive with the physical
presence exemption he nevertheless must establish good moral character between the ,date he filed his application and the date it is
finally adjudicated. Conduct prior to the date of filing may be
considered in determining whether good moral character has been
established during thit period.
  On the basis of the entire record in this case, we are of the opinion
that a favorable finding as to the respondent's moral character is
warranted in accordance with the standard set forth in Matter of
Peralta, (supra).    The order entered by the special inquiry , officer
on January 11, 1966 will be affirmed. Cf. Matter of B —, 1 L &. N.
Dec: 611, B.I.A., November 23, 1943; Matter of T —, 1 L & N. • Dec.
158, B.I.A., September 4, 1941.
   ORDER: It is directed that the order entered, by the special
inquiry officer on January 11, 1966 be and the same is hereby
affirmed.
   It is further ordered that the deportation of the respondent be
suspended under the provisions of section 244(a) (1) of the Immi- •
gration and Nationality Act, as amended. • ,
   li is further ordered that if Congress takes no action adverse to
the order granting suspension of deportation, the proceedings be
cancelled, and that appropriate action be taken pursuant to section
244(d) of the Immigration and Nationality Act, as amended.
  It is further ordered' that in the event Congress takes action
adverse to the order grhnting suspension of deportation these proceedings shall be- reopened upon notice to the respondent.
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