Interim Decision #2284
MATTER OF KU LA
In Section 245 Proceedings
A-19457779
Decided lnj Regional Commissioner May 2, 1974
A temporary absence from the United States of an applicant for adjustment of
status as a refugee during the two-year period of continuous physical presence
required by the proviso to section 203(a)(7) of the Immigration and Nationality
Act, as amended, is, without further inquiry, held to have interrupted the
required continuity of his physical presence unless it is found that the
interruption of physical presence can be considered insignificant when
weighed against the consequences to the applicant of such a holding. Where, as
in the instant case, applicant is eligible for adjustment of status as the
beneficiary of an approved sixth preference visa petition, the consequences of
holding that his absences interrupted the continuity of his physical presence
are not serious. Therefore, his application for adjustment of status as a
refugee under the proviso to section 203(a)(7) and section 245 of the Act is
denied on the ground that he has not met the continuous physical presence
requirement of the proviso to section 203(a)(7). However, he is granted
adjustment of status under section 245 of the Act on the basis of his
qualifications as a sixth preference immigrant.
IN BEHALF OF APPLICANT: Charles Sternberg, Executive Director
International Rescue Committee, Inc.
386 Park Avenue South
New York, New York 10016
This matter is before the Regional Commissioner on certification
by the District Director who denied the applications for classification as a refugee under the proviso to section 203(aX7) and for
adjustment of status under section 245 of the Immigration and
Nationality Act, as amended.
The applicant is a 43-year-old married, native and citizen of
Czechoslovakia. He was admitted to the United States February 6,
1971 as an exchange visitor, pursuant to section 101(aX15(J) of that
Act, under the Soviet and Eastern European Exchange Program
as a National Science Foundation Senior Foreign Scientist Fellow.
He received extensions of stay under this program to November
30, 1078. The applicant's participation in the exchange visitor
program was privately financed, and his exchange visitor's visa
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was issued prior to May 25, 1972, the effective date of the
Exchange-Visitor Skills List published by the Department of State
on April 25, 1972 (Public Notice 356, 37 FR 8099). He is therefore
not subject to the foreign residence requirement of section 212(e)
of the Immigration and Nationality Act, as amended, and is not
precluded by that section from applying for status as a permanent
resident. The instant applications were filed February 6, 1973.
He stated that the award from the National Science Foundation
gave him his first opportunity to leave Czechoslovakia with his
family after his country had been occupied by the Soviet Union.
He had been employed as a research scientist in the Geological Institute of the Czechoslovak Academy of Science, Prague, Czechoslovakia from 1966 until his departure for the United States in 1971.
He further stated that he has never been a member of the
Communist Party; that he always believed in the democratic
traditions of Czechoslovakia as formulated by its first president, T.
G. Masaryk; and that the Russian occupation of Czechoslovakia is
obviously of a lasting nature and that free scientific inquiry is not
possible there. He stated that after his arrival in the United States
he cooperated with Radio Free Europe and that his full name was
broadcasted in connection with this activity. He has also cooperated with a number of American governmental agencies, such as
the Department of State, the Department of Transportation and
the Commerce Department. He further stated that if he were
required to depart the United States to return to Czechoslovakia,
he would be persecuted as an enemy of a communist state.
We find that the applicant is a refugee from a Communist
country within the meaning of section 203(aX7) of the Act. The
proviso to that section states "That immigrant visas ... may be
made available in lieu of conditional entries ... to such aliens who
have been continuously physically present in the United States for
a period of at least two years prior to application for adjustment of
status" (emphasis supplied).
The record discloses that the applicant, during the two years
preceding the filing of his application for adjustment, was absent
from the United States for four periods ranging from four to
.
fourteen day; visiting Canada three time and Barbados once. The
District Director denied the applications, holding that because of
the absences noted above the applicant had failed to meet the
continuous physical presence requirement specified in the proviso.
Counsel in his brief holds that these absences were not interruptive of the applicant's physical presence in the United States. The
facts of the case are not in dispute. The sole question to be
resolved is whether the absences did, hi fact, break the continuous
physical presence required by law. Counsel has been unable to
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find, nor have we, any precedent decision either administrative or
judicial dealing with this precise point. He cites Matter of Riva, 12
I. & N. Dec. 56, but this dealt with the question of the entry date
upon which to base an adjustment of status of a Cuban refugee
and does not deal with the question of physical presence. Counsel
also states that absences in cases under section 249 of the
Immigration and Nationality Act, as amended, and also in naturalization proceedings have been found to be not interruptive of
the residence requirements but in both of these instances the
question was one of residence rather than continuous physical
presence.
The legislative history of section 203(a)(7) is silent as to any
special interpretation of the terminology "continuously physically
present". Counsel argues that if the intent had been to prohibit
any departure from the United States, the law would have called
for uninterrupted physical presence rather than continuous physical presence.
Section 244(a) of the Immigration and Nationality Act uses the
terminology "physical presence in the United States for a continuous period", and section 244(b) refers to "The requirement of
continuous physical presence ..." .
In the absence at present of judicial precedent on the interpretation of the words "continuously physically present in the United
States" as used in section 202(a)(7), it appears that reference to
judicial decisions regarding the continuous physical presence requirements of section 244(a) of the Immigration and Nationality
Act, as amended, may be helpful. In Wadman, v. Immigration and
Naturalization Service, 329 F.2d 812 (CA. 9, 1964), the court
considered the case of an alien who had been found ineligible by
the Board of Immigration Appeals for suspension of deportation.
The Board's decision was based upon the conclusion that, because
of an absence of five days in Mexico, the alien had not met the
statutory requirement of seven years' continuous physical presence in the United States immediately preceding his application.
The court, in finding Wadman eligible for suspension, invoked
the precepts laid down by the Supreme Court in Rosenberg v.
Fleuti, 374 U.S. 449 (1963). The decision in the Fleuti case held that
a short visit to Mexico, under the circumstances of that case, was
not "meaningfully interruptive" of the alien's permanent residence and that, therefore, the alien had not made an entry upon
his return to the United States from Mexico.
The Circuit Court of Appeals in Wadman v. Immigration and
Naturalization
Service, supra, indicated there was no significant
distinction between the concept of a meaningful interruption of
permanent residence in the Fleuti case, and the concept of a
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meaningful interruption of continuous physical presence in the
Wat'man case. The Circuit Court of Appeals held that the term
"continuous" was not subject to a hard and fast rule, and stated
further:
Here there can be no question of the sufficiency of physcial presence. The
question is whether there was sufficient continuity .... The question is
whether the interruption, viewed in balance with its consequences, can be
said to have been a significant one under the guides laid down in Fleuti. (329
F2d at 815-16)
A similar holding was made by the same Circuit Court of
Appeals in its decision of March 16, 1966 in the case of Git Foo
Wong, also known as Chuck Sen Wong v. Immigration and Naturalization Service, 358 F.2d 151. That case, too, involved a question of
whether the alien's continuous physical presence for purposes of
suspension of deportation had been broken by a short visit to
Mexico.
The Board of Immigration Appeals, in Matter of Wong,
12 I. & N.
Dec. 271 (1967), held that the decisions of the court in the cases of
Wong v. Immigration and Naturalization Service, supra, and Wadman v. Immigration and Naturalization Service, supra, are binding in all jurisdictions on the issue of continuous physical presence
as required by section 244(a) of the Act, as amended.
Accordingly, in the circumstances presently under discussion, it
appears appropriate to examine the consequences of a determination that the alien's absences from the United States broke the
continuity of his physical presence prior to the filing of his
application on February 6, 1973. It would also appear pertinent to
examine the guides laid down in Fleuti.
As to the consequences of holding that the continuity of physical
presence was broken by the alien's brief absence, they are not very
dire. the applicant is the beneficiary of a visa petition to accord
him a sixth preference classification, filed on his behalf on September 13, 1973 by the Lamont-Doherty Geological Observatory of
Columbia University seeking his services as a senior research
associate. The visa petition was approved by the District Director
on April 15, 1974. Since a sixth preference immigrant visa number
is immediately available to the applicant by virtue of the approval
of this visa petition, and since it appears the applicant is otherwise
eligible, he may have his status adjusted under that preference
even if he is found to be ineligible under the seventh preference.
For this reason alone further consideration of whether the appli-
,
cant may qualify under the latter preference, despite his absences,
is not warranted.
However, assuming arguendo the consequences would indeed be
serious if it were found that his absences did indeed interrupt the
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continuity of hi -: physical presence, we will explore the facts
surrounding them. The Supreme Court, in Fleuti, stated that an
absence which was "innocent, casual and brief' should not be
regarded as "meaningfully interruptive" of a lawful permanent
resident alien's residence. Also, stated the court, in determining
whether the absence was innocent, casual and brief, "One major
factor ... is, of course, the length of time the alien is absent.
Another is the purpose of the visit, for lithe purpose of leaving the
country is to accomplish some object which is itself contrary to
some policy reflected in our immigration laws, it would appear
that the interruption of residence thereby occurring would properly be regarded as meaningful. Still another is whether the alien
has to procure any travel documents in order to make his trip,
since the need to obtain such items might cause the alien to
consider more fully the implications involved in his leaving the
country." The court indicated additional factors would be developed by the "gradual process of judicial inclusion and exclusion".
When we apply the foregoing guidelines to the question of
whether the applicant's absences in the instant case broke the
continuity of his physical presence, we find that while his absences
(three to Canada and one to Barbados) may possibly meet the
brevity guideline and there is no indication-that the purpose of his
visits abroad was in any way objectionable, his visit to Barbados
cannot be regarded as casual. The visits to Canada required no
special documentation, but information received from the Embassy of Barbados in Washington, D.C. establishes that a citizen of
Czechoslovakia must have obtained a visa for entry into Barbados.
Thus, the applicant does not meet one of the guidelines established
by the Supreme Court concerning the obtaining of travel documents to accomplish a trip outside the United States. His absence,
accordingly, must be regarded as interruptive of the required two-year period of continuous physical presence.
The decision of the District Director finding the alien ineligible
for adjustment of status under the prOviso to section 203(aX7) will
be affirmed. The application for adjustment will be approved on
other grounds.
IT IS ORDERED that the order of the District Director denying
the application for adjustment of status pursuant to the proviso to
section 203(aX7) and section 245 of the Immigration and Nationality Act, as amended, based upon the applicant's classification as a
refugee be, and hereby is, affirmed.
It is further ordered that the application for adjustment of
status be, and hereby is, approved on the basis of the applicant's
qualifications as a sixth preference immigrant.
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