Interim Decision #1691
MATTER OF RIVA
In Adjustment of Status Proceedings
A-12574985
Decided by Regional Commissioner February 8, 1967
A subsequent arrival after a temporary absence from the United States with no
intention on the part of the applicant to abandon her eceidenee in the United
States does not constitute the applicant's "last arrival" within the contemplation of section 1 a the Act of November 2,1966; hence, a Cuban citizen's "last
arrival", for the purposes of section 1, supra, ocottrred on September 15, 1959,
where such Cuban citizen last arrived in she United. Staten on Mar• 9 19611
,
after a temporary absence abroad in connection with her occupation, having
previously been inspected and admitted on September 15, 1959, and, her application for adjustment of status having been Sled on November 23, 1966, she
is entitled to the creation of a record of lawful admission for permanent
residence as of Blair 23, 1964.
The District Director granted this application providing for the
creation of a record of lawful amiss ' ion.for permanent residence of
the applicant as of May 9, 1966, the date of. her last arrival into the
United States, when she was admitted as a nonimmigrant in possession of an official G-4 visa at New Orleans, Louisiana, after a
temporary absence from the United States in connection with the requirts of her position as a staff member of the Inter-American.
Development Bank. The Department of ,State issued this " nonimmigrant visa to her in Washington, D.C. pursuant to the provisions
of section 101(a) (15) (G) (iv) of the Immigration. and Nationality
Act. The District Director certified the case to this.office for review.
Applicant has waived the filing of a brief or other written statement.
She is a native of Mexico and a citizen of Cuba. She was born
April 19, 1927.. At the time of 'her birth, her. mother was a citizen of
Cuba and her father was a citizen of Mexico. She married her spouse
in Havana, Cuba on July 25, 1919. He is a native and citizen of Cuba,
born July 29, 1917. They have two children born in that country on
September 24, 1953 and September 18, 1958, and one child born in
the United States,
There is in evidence a certificate of citizenship issued by the Under
Secretary of State of the Republic of Cuba, dated December 13, 1949,
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Interim Decision #1691
setting forth that applicant is a citizen of Cuba. This certificate was
apparently issued in accordance with prior Constitutions of Cuba (before the takeover by that country's present regime) which provided
that every person born in a foreign territory to a Cuban father or
mother became a citizen of Cuba as of the date of his birth upon taking
up residence in Cuba.
The record discloses that applicant first arrived In the United
States subsequent to January 1, 1959 on September 15, 1959 as a nonimmigrant for pleasure and was so admitted pursuant to section 101
(a) (15) (B) of the Act. On June 12, 1961, following receipt of notice
from the Department of State that she was entitled thereto, her status
was changed to that of a nonimmigrant as an employee of an international organization under section. 101(a) (15) (G) (iv).
On November 2, 1966 Public Law 89-732 was enacted. It is an Act
to adjust the status of Cuban refugees to that of lawful permanent residents of the United States, and for other purposes. Section 1 of this
Act reads as follows :
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That, notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act, the status of any alien who
is a native or citizen of Cuba and who has been inspected and admitted oz paroled
into the United States subsequent to January 1, 1959 and has been physically
present in the United States, for at least two years, may be adjusted by the At
General, in his discretion and under such regulations as he may prescribe,
to that of alien lawfully admitted for permanent residence if the alienInakes
an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.
Upon -approval of such an application for adjustment of status, the Attorney
General shall create a record of the alien's admission for permanent residence
as of a date thirty months prior to the filing of such an application or the date
on his last arrrival into the united States, whichever date is later. was Provisions
of this Act shall be applicable to the spouse and child of any alien described in this
subsection, regardless of their citizenship and place of birth, who are residing
with such alien in the United States.
Section 2 of this same Aotereads as follows :
In the case of any alien described in section 1 of this Act who, prior to the
effective date thereof, has been lawfully admitted into the United States for permanent residence, the Attorney General shall, upon application, record his admission for permanent residence as of the date the alien originally arrived in
the United States as a nonimmigrant or as a parolee, or a date thirty months
prior to the date of enactment of this Act, whichever date is later.
A literal reading of section 1 of 'the Act of November 2, 1966 would
make it appear that the record of lawful admission for permanent residence hi the case of an applicant who had arrived in the United States
subsequent to January 1, 1959but had been absent recently for a short
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Interim Decision #1691
period would have to be created as of the date of his recent return.
However, since this is remedial legislation, such a strict, interpretation
is to be avoided if it thwarts the congressional intent. The legislative
history of the Act of November 2, 1966 shows that that Act emerged
as a compromise measure between S. 3712 and H.R. 15183. The former
bill had provided that upon approval of the application by' a Cuban
refugee for adjustment of status, the record of admission for permanent
residence was to be created as of the date of his last arrival in the
United States. The latter bill had provided that upon approval of such
application, the record of lawful admission for permanent residence
was to be created as of the date of approval of the application. The
Senate and House conferees agreed on the compromise which appears
in the Act of November 2, 1966 and which provides that the record
shall be created "as of a date thirty months prior to the filing of such
an application or the date of his last arrival into the United States,
whichever date is later."
In commenting upon the conference report, Congressman Jacob H.
Gilbert, one of the managers on the part of the House stated (Congressional Record House, October 21, 1966, p. 27452) :
—
The great majority of refugees from Cuba have been in the United States for
many years and the conferees thought it would only be equitable to give them
some retroactive status as permanent residents but not going so far as to make
them automatically eligible to apply for naturalization.
It was, therefore, the obvious congressional intent to provide Cuban
aliens who had been inspected and admitted or paroled into the United
States after January 1, 19b9 and who had resided for some time within the United States, with a partial assist toward meeting the residence
requirement for naturalization.
There are a considerable nurnber of Cuban aliens who after their
initial admission or parole into the United States after ,January 1,
1959, have found it necessary to proceed abroad temporarily for business, emergent family situations or other substantial reasons. Thereafter, they have proceeded abroad, often with the prior consent of
the gervice, which has issued to them advance authorization for parole
upon their return. It is inconceivable that Congress had intended to
deprive such aliens of the "head start" towards fulfilling the residence
requirement for naturalization, which the legislation bestows upon
other Cuban refugees who had not found it necessary to depart temporarily from this country.
In that connection, it should be noted that, in commenting upon S.
3712 as it was originally introduced, the Deputy Attorney General,
in a letter dated August 16, 1966 to the Chairman of the Senate Committee on the Judiciary made the following comment :
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Interim Decisicin #1691
It has been pointed out that a. number of Cuban parolees have made the effort
to depart from the United States for the sole purpose of procuring immigration
visas and haye returned as immigrants for permanent residence. Under the present law the date of the second arrival would be the applicable date in computing
residence time toward naturalization. It is questionable whether these Cubans
who have made the effort to adjust their status and probably through personal
sacrifice have expended funds to go out of the country and return as permanent
residents !pad be penalized and have a later arrival date than if they had
'stayed in the country as most Cuban parolees have done and who under this
Bill would have their status adjusted as of the date of original arrival.
It was apparently as a result of the Deputy Attorney General's comment quoted above that section 2 of the Act of November 2, 1966 was
enacted in its present form. That section provides that a Cuban refugee
who was lawfully admitted to the United States for permanent residence prior to November 2, 1966 may apply to have his admission for
permanent residence recorded as of the date he "originally arrived in
the United States as a nonimmigrant or as a parolee, or a date thirty
months prior to" November 2, 1966, whichever is the later.
Yet, although section 2 refers to the original arrival, and section 1
refers to the last arrival, it appears clear from the legislative history
that it was intended to confer, substantially the same retroactive benefit to eligible applicants under section 1 or 2 of the Act of November 2,
1966, with respect to fixing the date as of which the record of lawful
admission for permanent residence was to be created.
Therefore, we conclude that the term "last arrival" as used in section 1 of the Act of NoVember 2, 1966, and the term "originally arrived" as used in section 2 of that Act, must be interpreted with reference to other possible arrivals in the United States by the alien. In
section 1, the term "last arrival" refers to the alien's first arrival after
January 1, 1959 (at which time he was inspected and admitted or
paroled into the United States), as opposed to any arrivals by the
alien on or prior to January 1, 1959. The term "oriainally arrived"
as used in section 2 refers to the alien's first arrival after January 1,
1959 (at which time he was inspected and admitted or paroled into
the United States), as opposed to the date on which the alien subsequently arrived in the United States in possession of an immigrant
visa. Thus, it is submitted that the term "last arrival" as used in section 1 and the term "originally arrived" as used in section 2 both refer
to the same arrival in point of time, namely the alien's first arrival
after January 1, 1959 on which occasion he was inspected and admitted
or paroled into the United States.
It is our further view that a subsequent arrival should be considered
in computing the date as of which the record of lawful admission
should be created in the case of an applicant under section 1 of the
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Ant of November 2, 1066, only when the alien's subsequent arrival occurred after he had departed from the United States with the intention
of abandoning his residence in this country. On the other hand, a subsequent arrival after a temporary absence from the United States with
no intention on the applicant's part to abandon his residence in the
United States should not be regarded as the applicant's "last arrival"
within the contemplation of section 1 of the Act of November 2, 1966.
The foregoing conclusion is based upon the legislative history of
Public Law 89-732, from which it appears that Congress did not intend that an eligible applicant who had acquired a substantial period
of residence within the United States should be deprived of the retroactive benefit in ajudicating his status simply because such applicant
had found it necessary to depart temporarily from this country with
no intention of abandoning his residence i n the United States.
The applicant filed her application for creation of a record of admission for permanent residence with the Service on November 23,
1966 under section 1 of
Public Law 89-732. The record establishes she
is a citizen of Cuba; that she has been physically present in the United
States for at least two years subsequent to January 1, 1959; that she
is eligible to receive an immigrant visa; that she is admissible to the
United States; and that she has executed and submitted the written
waiver of certain rights, privileges, exemptions and immunities -which
would otherwise accrue to her by reason, of her occupational status
as a member of an international organization, as required by 8 CFR
245.1(c) .
Based upon the reasons Set forth above, We find that applicant's
last arrival in the United States, for the purpose of this application,
occurred on September 15, 1959. We further find, pursuant to section 1,
that applicant is entitled to a creation of a record of lawful admission
for permanent residence as of a date thirty months prior to November 23, 1966, specifically May 23, 1964. Accordingly, we shall enter
the following order:
ORDER: It is ordered that the application be granted and a record
created showing applicant's admission into the United States for permanent residence as of May 23, 1964.
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