Interim Decision #2853
MATTER OF HERRERA
In Deportation Proceedings
A-22387924
Decided by Board March 19, 1981
(1) The physical presence requirement of section 244(a)(1) of the Immigration and National.
ity Act, 8 U.S.C. 1254(aX1), has not been subject to hard and fast construction.
(2) Aliens with 7 years of presence in the United States have been found eligible for suspension of deportation so long as no departure was "meaningfully interruptive" of
their stays here.
(3) In the Ninth Circuit, a departure from the United States meaningfully interrupts an
alien's "continuous physical presence" here for suspension purposes if it "reduced the
significance of the whole petted as reflective of the hardship and unexpectednessof expulsion." '
(4) A strung policy against sham marriages is reflected In the Immigration and Nationality
Act, and in the case law interpreting that Act.
(5) Where alien departed the United States in furtherance of a scheme to obtain an
immigration benefit through a sham marriage, that departure was neither casual nor
innocent, but rather meaningfully interrupted his 7 years continuous physical presence here. He is thus statutolly ineligible for suspension of deportation.
CHARGE:
Order: Act Of 1952 — See. 241(a)(2)l8 U.S.C. 1251(a)(2)) Nonimmigrant remained
— —
longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF F SERVICE:
Roger McCaffrey, Esquire Thomas Y.K. Fong
2110 E. 17th Street, Suite 123 Trial Attorney
Santa Ana, California 92705
By: Milhollan, Chairman, Maniatis, Appleman, and Maguire, Board Members
In a decision dated October 24, 1979, an immigration judge found the
respondent deportable under section 241(a)(2) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant visitor who had
remained longer than authorized, denied his application for suspension
of deportation, and granted him the privilege of voluntary departure in
lieu of deportation. The respondent appealed. The appeal will be
dismissed.
The respondent is a 40-year-old native and citizen of Mexico. He last
entered the United States on December 14, 1976, as a nonimmigrant
visitor. Deportability has been conceded, and the only issue on appeal,
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Interim Decision #2853
as at the hearing, is the respondent's eligibility for suspension of deportation under section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1).
In order to qualify for suspension of deportation, an alien who is
deportable as an overstay must show that he has been physically present in the United States for a continuous period of at least 7 years, that
he has been a person of good moral -character for all that time, and that
his deportation would result in extreme hardship to himself or to his
spouse, parent or child who is a citizen or lawful permanent resident of
the United States. Section 244(a)(1) of the Act. In the present case, the
immigration judge found that the respondent had failed to meet both the
7 years continuous presence requirement and the extreme hardship
requirement. He further stated that, even if the respondent had been
statutorily eligible for suspension, he would have denied that relief as a
matter of discretion.
The "physical presence" requirement of section 244(a)(1) has not been
subject to a hard and fast construction. Instead, aliens with 7 years of
presence in the United States have been found eligible for relief so long
as no departure from this country was "meaningfully interruptive" of
their stays here. See Git Foo Wong v. INS, 358 F.2d 151 (9 Cir. 1966);
Wadman v. INS,
329 F.2d 812 (9 Cir. 1964); Matter of Wong,
12 I&N
Dec. 271 (BIA 1967). See also Rosenberg v. Fleuti,
374 U.S. 449 (1963).
In making the determination whether a given departure was "meaningful"
we look to see whether the departure was "brief, casual and innocent:" if
so, it will not interrupt the period of continuous physical presence
required for suspension of deportation. See Git Foo
Wong, supra;Wadman, supra; Matter of
Wong, supra.
The United States Court of Appeals for the Ninth Circuit has further
held that in reviewing the meaningfulness of a departure, this "Board
must determine whether a particular absence during the 7 year period
-
reduced the significance of the whole period as reflective of the hardship
and unexpectedness of expulsion." Kamh,eangpatiyooth. v. INS, 597 F.2d
1253, 1257 (9 Cir. 1979).. "An absence cannot be significant or meaningfully interruptive of the whole period," the Court stated, "if indicatk.ns
are that the hardship of-deportation to the alien would be equally severe
had the absence not occurred, and that no significant increase in the likelihood of deportation could reasonably have been expected to flow from
the manner and circumstances surrounding the absence."• See also
Chan v. INS,
610 F.2d 651 (9 Cir. 1979). As the present case arises in
the Ninth Circuit, this legal standard will be applied here.
In this case, the Immigration and Naturalization Service concedes
that the respondent has been physically present in this country, except
for several brief absences, since 1966. The question, then, is whether
any of these absences meaningfully interrupted his presence here The
departure with which the immigration judge was concerned, and with
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Interim Decision #2853
which we will deal, occurred in 1976. At that time, the respondent went
to the American consulate in Tijuana, Mexito, in order to obtain a visa.
He sought a second preference immigrant visa as the spouse of a lawful
permanent resident, based on his marriage to one Perla Pereira, a lawful permanent resident. This marriage, however, was undisputedly a
sham, entered into solely for immigration purposes. A proxy marriage
to Perla had occurred in Guatemala on October 28, 1973. The respondent was not present at the marriage, and in fact has never been to
Guatemala. The respondent has freely admitted that the marriage was
arranged order that he might obtain an immigration benefit, and that
he never lived with Perla, and never intended to. enter into a bona fide
marital relationship with her. At the time of this marriage, the respondent was living with his ex-wife (whom he had divorced in 1973), the
woman with whom he still lives. He paid Perla a total of $2500 to enter
into the marriage and help him arrange for immigration papers. Based
on these facts, the immigration judge determined that the respondent's
1976 departure to obtain a visa based on a sham marriage was neither
casual nor innocent, and that the departure thus meaningfully interrupted the respondent's 7 years of continuous presence here.
The respondent argues that the immigration judge's finding in this
regard was erroneous because he (the respondent) did not know for
certain that his marriage to Perla was not valid under the immigration
laws. Ile contends that his departure in 1976 to obtain a visa was in fact
"innocent" because he was not sure the marriage would not be considered valid, and he had no intention of violating the immigration laws. He
further contends that the departure was casual, in that it was "occasional," and that is the second definition for "casual" given in Webster's .
New World Dictionary, 2nd College Edition, 1977.
We do not agree with the respondent that his 1976 departure from the
United States was either casual or innocent. The Supreme Court in
Rosenberg v. Fleuti, supra, stated that in determining whether an
alien's departure from that country should be regarded as "meaningful,"
a relevant factor to consider is the purpose of the visit abroad, for,
if the purpose of leaving the country is to accomplish someobject 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. Id. at 962.
A number of eases have interpreted this portion of the Fleuti decision,
and have held the Fleuti doctrine inapplicable where the aliens while
abroad commit acts contrary to the policies of the immigration laws.
See, e.g., Laredo-Miranda v. INS,
555 F.2d 1242 (5 Cir. 1977) (aiding
illegal aliens to enter the United States surreptitiously); Longoria-Castenada v. INS,
548 F.2d 233 (8 Cir. 1977) (smuggling aliens); Cuevas-Cuevas v. INS,
523 F.2d 883 (9 Cir. 1975) (smuggling aliens); Palatian
v. INS,
502 F.2d 1091 (9 Cir. 1974) (attempting to bring in 55 pounds of
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Interim Decision #2853
marijuana); Matter of Valencia-Barajas, 13 I&N Dec. 369 (BIA 1969)
(smuggling aliens); Matter of Alvarez 7Verduzco,
11 I&N Dec. 625 (BIA
1966) (attempting to bring in heroin).
Kamheangpatiyooth v. INS, supra, also recognized the importance of
considering an alien's purpose in leaving the United States, in making
the determination of whether such departure was meaningful. In that
case, the alien's purpose was wholly innocent (visiting his sick mother),
and the only question was whether the length of the trip abroad, and the
planning required for it, rendered it meaningfully interruptive of his
presence here: However, after setting forth its new test for deciding the
meaningfulness of a, departure, the Court in a footnote noted that,
The alien's purpose may have a significance independent of its relevance in deterniining
whether an absence has significantly affected the reasonableness of an inference that
expulsion would be harsh and unexpected. In Penn the Court indicated that readmission following ajourney abroad may cqnstitute an "entry" within the meaning of 101(a)(13)
if the trip is undertaken "to accorhplish some object which is itself contrary to some
policy reflected in our immigration laws." Id. at 1257-1258.
While the cases finding the Fieuti doctrine inapplicable due to an
alien's purpose in taking a trip abroad, or due to his actions while abroad,
have generally involved the smuggling of aliens or of drugs, and not
aliens involved in sham marriages, there is no question that a strong
policy against sham marriages is also reflected in the Immigration and
Nationality Act, and , in the case law interpreting the Act. See, e.g.,
section 204(c) of the Act, 8 U.S.C. 1154(e); section 241(c)(1) and (2), 8
U.S.C. 1251(c)(1) and (2); Lutwak v. United States,
344 U.S. 604 (1953);
Matter of M-,
8 I&N Dec. 217 (BIA 1958). We therefore hold that the
doctrine set forth in Fleuti and Git Foo
Wong, supra, will not apply
where an alien departs the United States, no matter how briefly, in
furtherance of a scheme to obtain immigration benefits Waugh a sham
marriage.
The respondent in the present case admittedly entered into a fraudulent marriage. Despite his protestsof complete innocence, the respondent's
testimony regarding this marriage clearly indicates that he recognized
the possibility of problems with his marriage to Perla Pereira.' When he
departed for Mexico in 1976, it was for the purpose .of obtaining an
immigrant visa based on a marriage which he knew was not bona tide,
and which he at least suspected might not be valid for immigration
I See, e.g., these exchanges, at the deportation hearing,between the respondent and his
attorney:
Q. And did you know whether or not, did you think it [the marriage to Perla) was illegal
under Mexican law?
A. I did not know.
Q, So you did not know one way or another whether it was illegal or legal?
A. No.
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purposes. Under these circumstances, the conclusion is inescapable that
this departure from the United States was neither casual nor innocent.
It was thus meaningfully interruptive of his 7 years' presence here,
and renders him statutorily ineligible for suspension of deportation.
Having determined that the respondent has not met the 7 years continuous physical presence requirement, we need not reach the issue of
whether he would suffer extreme hardship if deported, or whether he
would merit suspension of deportation as a matter of discretion.
The time originally granted to the respondent for voluntary departure has long since expired. In accordance with Matter of Ch,ouliaris, 16
I&N Dec. 168 (BIA 1977), we will grant the respondent 30 days from
the date of this order in which to voluntarily depart Emil the United
States.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent shall be permitted to
depart from the United States voluntarily within 30 days from the date
of this order or any extension beyond that time as may be granted by
the District Director. In the event of failure to so depart, the respondent shall be deported as provided in the immigration judge's order.
Q. And as far United States law goes? Did you know whether it was legal or illegal?
A. Yeh, no.
Q. So did you actually believe thou [sic) after all the paper work went through that you
were legally married even though you did not live with the wife?
A. I do not Imoivi it is what I said before, I do not know what I was yes or no . . . .
Q. Did you ever feel that your marriage to Perla Pereira was illegal? Just to get an
, answer which can be easily understood.
A.. Yes and no because she use to say that it was legal but I never signed any papers.
(Tr: at 37-38)
