Interim Decision #2097
MATTER OF BARRAGAN
In Deportation Proceedings
A-19883045
Decided by Special Inquiry Officer April 22, 1971
Decided by Board September 13, 1971
The departures of respondent, an alien illegally in the United States, to
Mexico on February 2, 1968, and April 3, 1970, pursuant to an administrative grant on each occasion of voluntary departure without the institution of deportation proceedings, were meaningful, rather than casual departures, despite her intent to return and actual return to the United
States on the same day or within a short time thereafter. Therefore, the
relatively brief periods of her absence from this country broke the continuity of her physical presence in the United States for the purpose of
qualifying for suspension of deportation under section 244(a) (1) of the
Immigration and Nationality Act, as amended.
CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2) )—Nonimmigrant visitor—remained longer.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Otto F. Swanson, Esquire Reece B. Robertson
366 South Broadway Trial Attorney
Los Angeles, California 90013
(Brief filed)
BEFORE THE SPECIAL INQUIRY OFFICER
(April 22, 1971)
The respondent is a 36-year-old widow. As alleged in the order
to show cause she admitted through counsel that she is a native .
and citizen of Mexico; that she entered the United States at San
Ysidro, California in April 1970; that she was admitted as a nonimmigrant visitor and authorized to remain in the United States
for a temporary period not to exceed 15 days, and that she has
not departed from the United States. The respondent further con-
759
Interim Decision #2097
ceded deportability on the charge contained in the order to show
cause. On the basis of the foregoing admissions, I have determined and concluded that she is clearly deportable from the
United States on said charge.
During the course of the hearing the respondent through counsel submitted an application for suspension of deportation (Exhibit 2). Counsel contended that the respondent was exempt from
the provisions of section 244(f) of the Act despite the fact that
she is a native of contiguous territory because she is unable to
obtain a labor certification as a sewing machine operator. Counsel
also requested in the respondent's behalf, in the alternative, the
privilege of voluntary departure in lieu of deportation. The Trial
Attorney stated for the record that it was the Service's position
that inasmuch as the respondent was statutorily ineligible for
suspension of deportation the usual investigation conducted in
such cases was being waived and that the Service for the purpose
of the instant proceedings would concede that the respondent was
and had been a person of good moral character for the past seven
years.
The respondent testified that she first entered the United States
in November 1963 at San Ysidro, California at which time she
was admitted as a border crosser for not more than 72 hours. She
stated that she has resided here continuously since then except
for two departures to Mexico through the port of San Ysidro,
California on February 2, 1968, and April 3, 1970. The respondent admitted that on both of the aforementioned dates she had
been apprehended by officers of this Service who permitted her to
leave the United States voluntarily. She declared that after her
first departure on February 2, 1968, she returned to the United
States at San Ysidro, California on the same day by presenting
her border crossing identification card. She also admitted that
after her second voluntary return to Mexico on April 3, 1970, she
next returned to the United States at San Ysidro, California on
April 10, 1970, again by presenting her border crossing card.
In order to qualify for suspension of deportation under section
244(a) (1) of the Act an applicant must establish, among other
things, that he has been physically present in the United States
for a continuous period of not less than seven years immediately
preceding the date of his application for suspension of deportation. The question to be determined in this regard is whether the
respondent's departures from the United States to Mexico on
February 2, 1968, and April 3, 1970, pursuant to the privilege
granted to her on each occasion to depart voluntarily in lieu of
r7C11
Interim Decision #2097
the institution of deportation proceedings, broke the continuity of
her physical presence in the United States. Based upon the statements made for the record by the Trial Attorney it is assumed
that it is the Service's contention that departures from the
United States pursuant to directives of officers of the Service,
acting for the Attorney General, cannot be characterized as brief
and casual but, rather, were meaningful departures which serve
to distinguish the instant case from the precedent decisions rendered in Wadman v. INS, 329 F.2d 812; Git Foo Wong v. INS,
358
F.2d 151; and Toon Ming Wong v. INS,
363 F.2d 234, all of
which were bottomed upon the rationale of the Supreme Court in
Rosenberg v. Fleuti,
374 U.S. 449.
It is the respondent's position, however, that although it is admitted that she left the United States on two occasions such departures were not a significant and meaningful interruption of
her presence in the United States, citing Matter of Wong, 12 I. &
N. Dec. 271 (May 10, 1967 and June 23, 1967). The respondent
testified that on both occasions when she was required by officers
of this Service to leave the United States she had intended to return to this country immediately. Although she departed to Mexico on February 2, 1968, with her daughter, a native and citizen
of Mexico who was in the United States illegally also, she was not
accompanied by the child on the occasion of her last departure on
April 3, 1970. The respondent stated that because her daughter
had remained in the United States it was her, the respondent's,
desperate intention to return to the United States as soon as possible.
To state the primary issue in this case in another way: Does
the departure by an alien who is illegally in the United States,
pursuant to an administrative grant of voluntary departure without the institution of deportation proceedings, followed by a return to the United States on the same day or within a short time
thereafter, break the continuity of physical presence required to
qualify for suspension of deportation under section 244 (a) (1) ?
It has been held that deportation terminates residence. Mrvica
v. Esperdy, 376 U.S. 560 (March 30, 1964). An alien who departs
pursuant to an order of exclusion and deportation breaks the continuity of his residence. Matter P—,
8 I. & N. Dec. 167; Matter
of R—,
8 I. & N. Dec. 598. It has also been held that departure
pursuant to an order of voluntary departure granted in a deportation hearing does not break the continuity of residence for section 249 relief. Matter of Contreras-Sotelo,
12 I. & N. Dec. 596
(December 26, 1967); Matter of Benitez-Saenz,
12 I. & N. Dec.
761
Interim Decision #2097
593 (December 22, 1967). The Board of Immigration Appeals has
also held that enforced departure from the United States without
formal exclusion or deportation proceedings did not break the
continuity of domicile. Matter of C—,
2 I. & N. Dec. 168 (June
27, 1944).
Attention is directed to the fact that while the decisions referred
to in the paragraph above are concerned with the continuity of
residence and domicile under specified situations, none of said decisions dealt directly with the issue involved in the instant case,
namely, the continuity of physical presence in the United States
following a departure pursuant to a grant of administrative voluntary departure privilege. However, in discussing the specific
statutory prerequisites for suspension of deportation, it is stated
in Immigration Law and Procedure, Gordon and Rosenfield, in
section 7.9d (2) on Page 7-95: "Different qualifying periods of
sojourn are required (7 and 10 years) for the two statutory categories. But the mere maintenance of a domicile or place of general abode is not sufficient. The statute is explicit in commanding
in each instance continuous physical presence in the United
States for the requisite period. The requirement of continuous
physical presence, as distinguished from residence or domicile, is
new in the 1952 Act. …" (Emphasis added.)
The Board has also recognized that "residence" and "physical
presence" are not synonymous. Matter of Young, 11 I. & N. Dec.
38 (January 29, 1965); Matter of Graham,
11 I. & N. Dec. 234
(June 25, 1965). Considering that both departures of the respondent from the United States in 1968 and 1970 were effected
'Dy her in order to avoid the institution of deportation proceedrigs by this Service, said departures must be regarded as meanngful rather than merely brief and casual, despite the intent and
tctual return to the United States shortly after the departures. In
he premises, it is concluded that the respondent's departures do
tot come within the rationale of the Wadman decision, supra. In-
1
smuch as I find that, in light of the foregoing, the respondent
annot establish continuous physical presence in the United
Cates for the required. seven-year period, it is concluded that she
; statutorily ineligible for the privilege of suspension of deportaon.
During the hearing the respondent testified that she has been a
idow since her husband's death on December 11, 1956; that in
:exico she has her mother, brothers and sisters; that her only
ose relatives in the United States are her daughter and a
762
Interim Decision #2097
brother who is a lawful resident of this country; that her daughter was born in Mexico on February 2, 1957, shortly after her
husband's death; that she has never been arrested in the United
States or Mexico; that she has never been deported from the
United States; that she is not now and has never been a member
of the Communist Party or any other subversive organization ;
that she is employed as a sewing machine operator; that she has
raised her daughter without aid from any other person; that she
attempted to obtain an immigrant visa but was unsuccessful because she was financially unable to prosecute such application;
that if suspension of deportation is denied she would be ready,
willing and able to depart from the United States at her own expense when required to do so; that prior to coming to the United
States in 1963 she had resided on a very small ranch in Mexico
with her mother, brothers and sisters; that life there was very
hard; that they were very poor and there was no opportunity for
employment; that there was no school in the vicinity of the
ranch; that the same conditions exist in that area today; that if
she were required to leave the United States she would be compelled to return to the ranch inasmuch as there is no other place
she could go; that she would be unable to support herself ; that
during her residence in the United States she has been sending
money to Mexico for the support of her mother; that her daughter is attending school in the United States, and that if her deportation should be required she designated Mexico as the country of deportation.
Inasmuch as the respondent is statutorily ineligible for suspension of deportation, under the facts in the instant case, the
maximum relief for which the respondent can qualify is voluntary departure in lieu of deportation. As a matter of administrative discretion, said alternative form of relief which was applied
for in her behalf by counsel will be granted.
ORDER: It is ordered that the respondent's application for suspension of deportation be, and the same is hereby, denied.
It is further ordered that in lieu of an order of deportation the
respondent be granted voluntary departure, without expense to
the Government, on or before July 22, 1971, or any extension beyond such date as may be granted by the District Director, and
under such conditions as the District Director shall direct,
It is further ordered that if the respondent fails to depart
when and as required, the privilege of voluntary departure shall
be withdrawn without further notice or proceedings and the following shall thereupon become immediately effective: The re-
763
Interim Decision #2097
spondent shall be deported from the United States to Mexico on
the charge contained in the order to show cause.
BEFORE THE BOARD
(September 13, 1971)
The respondent is a 36-year-old native and citizen of Mexico
who has conceded deportability on the above-stated charge. She initially entered the United States in November 1963 on a border
crossing identification card which was limited to 72 hours. She
remained in the United States continuously except for a one-day
departure to Mexico in February 1968 and approximately a oneweek departure to Mexico in April 1970. On both of these occasions she was apprehended by officers of the Service and was permitted to depart voluntarily in lieu of the institution of formal
deportation proceedings. She reentered the United States after the
two departures utilizing her border crossing identification card
to regain entry. At the hearing the respondent conceded deportability. This appeal is from the special inquiry officer's decision of
April 22, 1971 which denied the respondent's application for suspension of deportation under section 244(a) (1) of the Immigration and Nationality Act. The basis for denial was that the respondent was statutorily ineligible for such relief since she had
not met the requirement of being physically present continuously
for not less than seven years in the United States. The special inquiry officer found the respondent deportable, but granted the requested privilege of voluntary departure on or before July 22,
1971.
The Board has reviewed the evidence and is satisfied that deportability has been established by evidence that is clear, convincing, and unequivocal. The special inquiry officer has prepared a
well reasoned decision encompassing all of the pertinent elements
of this case. We concur in his conclusion that the respondent's departures from the United States were meaningful, rather than
casual, departures and that the relatively brief periods of her
absence from this country constituted breaks in the continuity of
her physical presence in the United States. The evidence of record establishes that the respondent was apprehended on both occasions and chose to depart voluntarily rather than to become the
subject of deportation proceedings. The departures were therefore "enforced" departures and support the conclusion that there
were two clear breaks in the required continuity of physical presence in the United States.
10 fit 4
Interim Decision #2097
After carefully appraising the evidence in the light of the pertinent legal principles and case law, the Board can find no basis
for disturbing the decision of the special inquiry officer. In granting the respondent voluntary departure, the special inquiry officer
extended the maximum relief that may be awarded. Since the execution of the special inquiry officer's order has been stayed during the pendency of this appeal, the Board will provide for the
voluntary departure of the respondent within 90 days from the
date of this decision.
ORDER: It is ordered that the appeal be dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States within 90 days from the date of this decision or any
extension beyond that time as may be granted by the District
Director , and that, in the event of failure so to depart, the respondent shall be deported as provided in the special inquiry
officer's order.
765
