CHAVEZ-CALDERON

Interim Decision #3212




               MATTER OF CHAVEZ-CALDERON
                         In Deportation Proceedings
                                  A 29489499
                                     -




                   Decided by Board November 4, 1993

  The decision of the United States Supreme Court in Rosenberg v. Fleuti, 

(1963), holding that a lawful permanent resident's "brief, casual, and innocent"
departure from the United States did not meaningfully interrupt his residence in this
country, is inapplicable to aliens who are admitted as lawful temporary residents
pursuant to section 210 of the Immigration and Nationality Act, 

 (1988
& Supp. IV 1992).

CHARGE:
Order: Act of 1952—Sec. 241(a)(4) [

(a)(4)j—Crime involving moral
                    turpitude
ON BEHALF OF RESPONDENT:                           ON BEHALF OF SERVICE:
 Pro se                                              Veronica Rubi
                                                     General Attorney

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


   In a decision entered on January 31, 1990, the immigration judge
terminated these deportation proceedings on the ground that the
respondent was not deportable as charged. The Immigration and
Naturalization Service appealed from that decision. The appeal will be
sustained and the record will be remanded to the immigration judge.
   The respondent is a native and citizen of Mexico who obtained
status as a lawful temporary resident of the United States under
section 210 of the Immigration and Nationality Act, 

(1988 & Supp. IV 1992). On October 30, 1988, he was admitted to the
United States on the basis of his temporary residence in this country
after a short trip of less than 24 hours to Mexico. On January 26, 1989,
the respondent was convicted of voluntary manslaughter and aggravated assault under the laws of the State of New Mexico. These crimes
were committed on November 25, 1988, and as a result the respondent
was sentenced to a term of 3 years and 18 months, respectively, such
terms to be served concurrently.
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  On November 21, 1989, the Immigration and Naturalization
Service issued an Order to Show Cause, Notice of Hearing, and
Warrant for Arrest of Alien (Form I-221S), charging the respondent
with deportability under section 241(a)(4) of the Act, 

(a)(4) (1988), as an alien convicted of a crime involving moral
turpitude within 5 years of entry and sentenced therefor to a term of
imprisonment of 1 year or more.
   At the conclusion of a hearing conducted on November 28, 1989,
the immigration judge terminated the proceedings on the ground that
the respondent's last "entry" into the United States on October 30,
1988, was "brief, casual, and innocent," resulting in a proper
application of the so-called "Fleuti doctrine," whereby that departure
did not constitute an entry under the immigration laws. See generally
Rosenberg v. Fleuti, 

 (1963). Since the respondent's prior
entry occurred in 1978, the immigration judge concluded that the
respondent was not deportable as charged.
   On appeal the Service claims that the Fleuti doctrine applies only to
lawful permanent residents of the United States, not to lawful
temporary residents under section 210 of the Act. We agree that the
Fleuti doctrine does not apply to the latter class of aliens. In Fleuti, the
United States Supreme Court relied on the definition of "entry" found
at section 101(a)(13) of the Act, 

(a)( 13) (1958). That
provision reads in pertinent part:
  The term "entry" means any coming of an alien into the United States, from a
  foreign port or place or from an outlying possession, whether voluntarily or
  otherwise, except that an alien having a lawful permanent residence in the United
  States shall not be regarded as making an entry into the United States for the purposes
  of the immigration laws if the alien proves to the satisfaction of the Attorney General
  that his departure to a foreign port or place or to an outlying possession was not
  intended or reasonably to be expected by him or his presence in a foreign port or place
  or in an outlying possession was not voluntary . . . .

Section 101(2)(13) of the Act (emphasis added).
   In deciding Fleuti, the Supreme Court first noted the above
exception created in section 101(a)(13) for lawful permanent residents
of the United States and its creation due to the ties to this country
formed by aliens who have a Long-term presence here. The Court
therefore held that a lawful permanent resident's brief, casual, and
innocent departure from the United States demonstrated a lack of
"intent" to meaningfully interrupt his or her residence in this country.

.
   Fleuti was decided before the creation of lawful temporary residence under section 210 of the Act and hence is not directly applicable
to such status. A review of the case law reveals that, in the context of
lawful temporary residence under section 245A of the Act, 8 U.S.C.

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§ 1255a (1988 & Supp. IV 1992), two courts have considered this
issue, with conflicting results. In Campos v. Smith, 

(W.D. Wash. 1991), the court noted that many of the rights and
benefits inuring to lawful permanent residents also pertain to temporary residents and held that the Fleuti doctrine applied to an applicant
for legalization who had inadvertently departed the United States. 

.
   In another case, however, a court held that the Fleuti doctrine was
inapplicable to an applicant for temporary residence under section
245A of the Act who left the United States without first securing
advance parole as required by 8 C.F.R. § 245a.2(m)(1) (1992). Kasbati
v. District Director of I.N.S., 

 (N.D. Ill. 1992). The
court in that case employed a statutory analysis, noting that section
 101(a)(13), relied upon in Fleuti, and section 101(a)(20), defining
lawful permanent resident status, both required "permanent" rather
than "temporary" status. 

.
   These decisions are not particularly instructive as, first, they
concern a different adjustment of status mechanism, and moreover,
reach contradictory conclusions on the issue. We would also note that
neither decision is binding precedent in the instant case. See Matter of
K-S-, 

 (BIA 1993). We accordingly deem it necessary
to turn to the statutory language of section 210 of the Act for further
analysis.
   Section 210 contains several provisions regarding a temporary
resident's right to travel to and from, and be employed in, the United
States in the same manner as a lawful permanent resident. The
sections we find of particular relevance are reproduced below:
  (4) AUTHORIZED TRAVEL AND EMPLOYMENT DURING TEMPORARY
  RESIDENCE.—During the period an alien is in lawful temporary resident status
  granted under this subsection, the alien has the right to travel abroad (including
  commutation from a residence abroad) and shall be granted authorization to engage
   in employment M. the United States and shall be provided an "employment
  authorized" endorsement or other appropriate work permit, in the same manner as
  for aliens lawfully admitted for permanent residence.
  (3) IN GENERAL. —Except as otherwise provided in this subsection, an alien who
  acquires the status of an alien lawfully admitted for temporary residence ... is
  considered to be an alien lawfully admitted for permanent residence (as described in
  section 101(a)(20)), other than under any provision of the immigration laws.

Sections 210(a)(4)-(5) of the Act.
  Although the language of section 210(a)(5) above is not perfectly
clear, we believe it evidences Congress' intent that aliens granted
lawful temporary status under section 210(a)(1) are to be treated as
lawful permanent residents under general federal and state law, but not
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for purposes of other benefits under the immigration laws. , Therefore,
while a lawful temporary resident under section 210 of the Act enjoys
the same right to work in the United States and freedom to travel
abroad as a lawful permanent resident, such alien may not submit
immigrant visa petitions under section 203 of the Act, 

(Supp. IV 1992). See 

(b)(3), (c) (1993). In addition,
lawful temporary residents under section 210 may not apply for a
waiver of inadmissibility under section 212(c) of the Act, 

(c) (Supp. N 1992), as that form of relief is limited to lawful
permanent residents.
    We realize that section 210(a)(4) of the Act, read in conjunction
with section 210(a)(5), may be viewed as providing the same travel
privileges to temporary residents under section 210 as apply to lawful
permanent residents, including application of the Fleuti doctrine. In
this respect, we note that section 210(a)(5) states, "except as otherwise
provided in this subsection," temporary residents under section 210
are to be considered lawful permanent residents of the United States,
"other than under any provision of the immigration laws." Since
section 210(a)(4) authorizes travel abroad for temporary residents in
the same manner as for permanent residents, the former must fall
under the first clause of section 210(a)(5), since that provision
otherwise precludes treating lawful temporary residents as permanent
residents under "any provision of the immigration laws," presumably
including section 210(a)(4).
   Although the above interpretation is not unpersuasive, we do not
believe that section 210(a)(4) reflects Congress' intent to apply the
Fleuti doctrine to temporary residents under section 210 for several
reasons. First, in enacting section 210 and its fellow provisions in the
Immigration Reform and Control Act of 1986, 

 Stat. 3359, Congress was familiar with the concept of a "brief,
casual, and innocent" departure and specifically used that phrase in
crafting several exceptions to residence and physical presence requirements, as well as in "overturning" a decision by the United States
Supreme Court. See, e.g., section 244(b)(2) of the Act (incorporating
Fleuti rule into context of suspension of deportation, held inapplicable
in INS v. Phinpathya, 

 (1984)); see also sections
245A(a)(3)(B), (b)(1)(B)(ii), (b)(3)(A), (g)(2XA) of the Act. Had
Congress intended that "brief, casual, and innocent" departures not be

  I This conclusion finds further support in the relevant legislative history of section 210
of the Aot, which reflects congressiomal concern that aliens employed in agricultural
operations not become "indentured" in that employment. See H.R. Rep. No. 682(I),
99th Corm., 2d Sess. 51, 83-85 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5655, 5687-
89 (discussing abuses in the Bracer& program of the 1960's).

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Interim Decision #3212

considered entries on the part of aliens afforded lawful temporary
residence under section 210 of the Act, the language of section
210(a)(4) could have clearly so stated.
  Second, a crucial distinction exists between temporary residents
under section 210 of the Act on the one hand, and aliens eligible for
adjustment under section 245A, lawful permanent residents, and
applicants for suspension of deportation on the other. All members of
the latter classes possess some form of long -term residence in the
United States and concomitant ties to this country, a concern which
was foremost in the Supreme Court's crafting of the Fleuti doctrine.
Aliens who adjust their status under section 210 of the Act, by
contrast, need to establish only the performance of 90 man-days of
seasonal agricultural services in the United States during a 12-month
period ending on May 1, 1986. See section 210(a)(1)(B) of the Act; 

(a) (1993). We do not believe that the language of
section 210(a)(4) of the Act, without more, dispenses with the
preferential treatment previously provided only to aliens with long-term residences in this country. C1 Campos v. 

 (holding
that lawful temporary residents under section 245A of the Act possess
similar equities as lawful permanent residents). 2
   For the foregoing reasons, we conclude that section 210(a)(4) of the
Act does not confer neutz benefits on aliens lawfully admitted for
temporary residence under that provision. Instead, we believe that the
statutory language of section 210(a)(5) should be read as precluding the
treatment of lawful temporary residents under section 210 of the Act
as "lawful permanent residents" under section 101 (a)(20) of the Act,
since the latter provision constitutes part of "the immigration laws"
for purposes of section 210(a)(5). As the Fleuti decision relies on the
statutory language of section 101(a)(20), it follows that the rationale of
that case cannot be applied to lawful temporary residents under
section 210 of the Act. Therefore, while free to travel to and from the
United States, such aliens do not enjoy the benefits of the Fleutt
doctrine. The immigration judge accordingly erred in terminating
these deportation proceedings and the record will be remanded for
further proceedings.

   2 The legislative history of the Immigration Reform and Control Act of 1986 reflects
strong opposition to section 210 by several members of the House Judiciary Committee
reporting the bill to Congress, on the ground that section 210 afforded unduly generous
immigration benefits to aliens with only a limited amount of time in the United States.
See H.R. Rep. No. 682(1), 99th Cons., 2d Sess. 209-13, 219-20, reprinted in 1986
U.S.C.C.A.N. 5649, 5746-49, 5754-56 (comments of Reps. Mazzoli, Lungren, and
Sensenbrenner). While the provision was eventually enacted despite these concerns, it is
clear that Congress was aware of the distinction between aliens adjusting under section
210 of the Act and other, long-term, resident aliens.

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                                                Interim Decision #3212

   ORDER:         The immigration judge's order terminating these
deportation proceedings is vacated.
   FURTHER ORDER:               The record is remanded to the immigration judge for further proceedings in accordance with the foregoing
opinion.




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