1600-89740
Decided by Board January 31, 1956
Suspension of deportation — Section 244 (a) (1), Immigration and Nationality Act — Physical presence.
An alien who, while residing in the United States, is inducted into the Armed Forces of this country and serves honorably is to be regarded as being physically present in the United States during such service even though part or all of his tour of duty is in a foreign country. Therefore, an alien whose only absence from the United States during the statutory period of required physical presence was for a period of 16 months during which he was serving in Japan and Korea as a member of the Armed Forces is not precluded from applying for suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act. (Cf. Matter of P----, A-3063410, 5 IN Dec. 220.)
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1917 — Admits crime prior to entry — Perjury.
BEFORE THE BOARD
Discussion: The special inquiry officer concluded that the respondent was statutorily ineligible for suspension but granted voluntary departure and certified the case to this Board for final decision.
The respondent is approximately 21 years of age, having testified that he believes he was born on September 4, 1934. He is a native and citizen of China who secured admission to this country as a United States citizen on October 19, 1946. In 1951 he admitted his alienage and this deportation proceeding was instituted. He was inducted into the United States Army on July 28, 1952, served in Japan and Korea from November 1952 to March 1954, and was separated from active service on April 13, 1954, under honorable conditions.
The special inquiry officer concluded that the lodged charge was not sustained and that the respondent met the "hardship" and good moral character requirements of section 244 (a) (1) of the Immigration and Nationality Act. However, he held that the respondent had not "been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application" which is also a requirement of section 244 (a) (1) of the act. This conclusion was predicated on our decision in Matter of P----, A-3063410, 5 IN Dec. 220 (1953), and the provisions of section 284 of the Immigration and Nationality Act.
We have carefully considered the representations of counsel in his brief on appeal. Delgadillo v. Carmichael, 332 U.S. 388 (1947), is, of course, authority for the proposition that where the departure to, or the presence in, a foreign country is involuntary, no entry is made upon the alien's return to the United States. However, we do not agree that section 101 (a) (13) and section 284 of the Immigration and Nationality Act compel a conclusion that the respondent did not make an entry upon his return to this country in March 1954. Section 101 (a) (13) seems to limit the Delgadillo decision to cases in which the alien had lawful permanent residence in the United States, which is not the case with respect to the respondent, and section 284 provides only for the unrestricted entry and departure of alien members of the United States Armed Forces who are traveling under official orders. The special inquiry officer was of the opinion that the proviso in section 284 precluded granting the respondent an exemption from the requirement of physical presence contained in section 244 (a) (1). We believe the proviso means only that an alien member of the United States Armed Forces gains no advantage under the immigration laws by reason of his readmission while under military orders. In other words, if he was deportable on documentary grounds prior to his departure, his readmission under section 284 does not cure the defect in his original entry. Hence, the provisions of section 284 are not the determinative factor.
The special inquiry officer's opinion indicates that he regarded the respondent's last entry as having occurred on October 19, 1946, and we agree that his return to this country as a member of the Armed Forces in March 1954 did not constitute an entry. This is in accordance with a long-established administrative practice ( Matter of J----, A-6972834, 3 IN Dec. 536, 538 (1949), citing the unreported decision in Matter of W----, A-7755700 (1947)).
Our conclusion that the respondent did not make an "entry" in March 1954 does not wholly dispose of the question of whether he has been physically present in the United States since October 19, 1946. As the special inquiry officer indicated, we previously said in Matter of P----, supra, that the requirement of continuous physical presence, contained in section 244 (a) of the Immigration and Nationality Act, means that "the alien must have been in the United States without any absence, no matter how brief, for the continuous period specified, * * *." We reached a similar conclusion with respect to a seaman employed on American vessels ( Matter of Z---- A---- N----, T-303081, 5 IN Dec. 298 (1953)). However, in both cases we were dealing with aliens who had voluntarily boarded the vessels which took them to foreign ports.
It is a well-settled rule of statutory construction that a case may be within the meaning of a statute and not within its letter, and within its letter and not within its meaning; and that a statute should be construed so as to carry out the intent of the legislature, although such construction may seem contrary to the letter of the statute ( Stewart v. Kahn, 78 U.S. 493, 504 (1870); Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 472 (1892)). We believe it is inconceivable that Congress could have intended that one who risked his life in active combat duty in a foreign country would thereby be barred from suspension of deportation whereas another alien, who performed no military duty whatever and who was thus able to remain in the United States, would be entitled to the benefits of section 244 (a) (1) of the Immigration and Nationality Act. It is our considered opinion that an alien who, while residing in the United States, is inducted into the Armed Forces of this country and serves honorably is to be regarded as being physically present in the United States during such service even though part or all of his tour of duty is in a foreign country. Our conclusion is consonant with a statement of the Service in Matter of A---- I---- C----, A-6606596, 4 IN Dec. 630 (1952), that an alien who was a bona fide student at the time of his induction into the United States Army should not be considered as requiring documents for a visit to Mexico "for this would impose upon him a greater burden by reason of his military service than he would have to meet had he applied for admission as a student." That case, of course, involved a different factual situation.
Since we have concluded that the respondent may be regarded as physically present in the United States during the period of his army service while abroad, it follows that suspension of deportation may be granted. We observe that no independent investigation has been conducted in this case. Accordingly, the hearing will be reopened in order that such an investigation may be made and the result thereof incorporated into the record.
Order: It is ordered that the special inquiry officer's order of August 25, 1955, be withdrawn and that the hearing be reopened for further proceedings in accordance with the foregoing.