Interim Decision #1691

Interim Decision #1691

MATTER OF RIVA

In Adjustment of Status Proceedings

A-12574985

Decided by Regional Commissioner February 8, 1967

A subsequent arrival after a temporary absence from the United States with no

intention on the part of the applicant to abandon her eceidenee in the United

States does not constitute the applicant's "last arrival" within the contemplation of section 1

the Act of November 2,1966; hence, a Cuban citizen's "last

arrival", for the purposes of section 1, supra, ocottrred on September 15, 1959,

where such Cuban citizen last arrived in she United. Staten on Mar• 9 19611

after a temporary absence abroad in connection with her occupation, having

previously been inspected and admitted on September 15, 1959, and, her application for adjustment of status having been Sled on November 23, 1966, she

is entitled to the creation of a record of lawful admission for permanent

residence as of Blair 23, 1964.

a

,

The District Director granted this application providing for the

' ion.for permanent residence of

creation of a record of lawful amiss

the applicant as of May 9, 1966, the date of. her last arrival into the

United States, when she was admitted as a nonimmigrant in possession of an official G-4 visa at New Orleans, Louisiana, after a

temporary absence from the United States in connection with the requirts of her position as a staff member of the Inter-American.

Development Bank. The Department of ,State issued this " nonimmigrant visa to her in Washington, D.C. pursuant to the provisions

of section 101(a) (15) (G) (iv) of the Immigration. and Nationality

Act. The District Director certified the case to this.office for review.

Applicant has waived the filing of a brief or other written statement.

She is a native of Mexico and a citizen of Cuba. She was born

April 19, 1927.. At the time of 'her birth, her. mother was a citizen of

Cuba and her father was a citizen of Mexico. She married her spouse

in Havana, Cuba on July 25, 1919. He is a native and citizen of Cuba,

born July 29, 1917. They have two children born in that country on

September 24, 1953 and September 18, 1958, and one child born in

the United States,

There is in evidence a certificate of citizenship issued by the Under

Secretary of State of the Republic of Cuba, dated December 13, 1949,

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Interim Decision #1691

setting forth that applicant is a citizen of Cuba. This certificate was

apparently issued in accordance with prior Constitutions of Cuba (before the takeover by that country's present regime) which provided

that every person born in a foreign territory to a Cuban father or

mother became a citizen of Cuba as of the date of his birth upon taking

up residence in Cuba.

The record discloses that applicant first arrived In the United

States subsequent to January 1, 1959 on September 15, 1959 as a nonimmigrant for pleasure and was so admitted pursuant to section 101

(a) (15) (B) of the Act. On June 12, 1961, following receipt of notice

from the Department of State that she was entitled thereto, her status

was changed to that of a nonimmigrant as an employee of an international organization under section. 101(a) (15) (G) (iv).

On November 2, 1966 Public Law 89-732 was enacted. It is an Act

to adjust the status of Cuban refugees to that of lawful permanent residents of the United States, and for other purposes. Section 1 of this

Act reads as follows :

Be it enacted by the Senate and House of Representatives of the United States

of America in Congress assembled, That, notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act, the status of any alien who

is a native or citizen of Cuba and who has been inspected and admitted oz paroled

into the United States subsequent to January 1, 1959 and has been physically

present in the United States, for at least two years, may be adjusted by the At

General, in his discretion and under such regulations as he may prescribe,

to that of alien lawfully admitted for permanent residence if the alienInakes

an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.

Upon -approval of such an application for adjustment of status, the Attorney

General shall create a record of the alien's admission for permanent residence

as of a date thirty months prior to the filing of such an application or the date

on his last arrrival into the united States, whichever date is later. was Provisions

of this Act shall be applicable to the spouse and child of any alien described in this

subsection, regardless of their citizenship and place of birth, who are residing

with such alien in the United States.

Section 2 of this same Aotereads as follows :

In the case of any alien described in section 1 of this Act who, prior to the

effective date thereof, has been lawfully admitted into the United States for permanent residence, the Attorney General shall, upon application, record his admission for permanent residence as of the date the alien originally arrived in

the United States as a nonimmigrant or as a parolee, or a date thirty months

prior to the date of enactment of this Act, whichever date is later.

A literal reading of section 1 of 'the Act of November 2, 1966 would

make it appear that the record of lawful admission for permanent residence hi the case of an applicant who had arrived in the United States

subsequent to January 1, 1959but had been absent recently for a short

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Interim Decision #1691

period would have to be created as of the date of his recent return.

However, since this is remedial legislation, such a strict, interpretation

is to be avoided if it thwarts the congressional intent. The legislative

history of the Act of November 2, 1966 shows that that Act emerged

as a compromise measure between S. 3712 and H.R. 15183. The former

bill had provided that upon approval of the application by' a Cuban

refugee for adjustment of status, the record of admission for permanent

residence was to be created as of the date of his last arrival in the

United States. The latter bill had provided that upon approval of such

application, the record of lawful admission for permanent residence

was to be created as of the date of approval of the application. The

Senate and House conferees agreed on the compromise which appears

in the Act of November 2, 1966 and which provides that the record

shall be created "as of a date thirty months prior to the filing of such

an application or the date of his last arrival into the United States,

whichever date is later."

In commenting upon the conference report, Congressman Jacob H.

Gilbert, one of the managers on the part of the House stated (Congressional Record House, October 21, 1966, p. 27452) :

—

The great majority of refugees from Cuba have been in the United States for

many years and the conferees thought it would only be equitable to give them

some retroactive status as permanent residents but not going so far as to make

them automatically eligible to apply for naturalization.

It was, therefore, the obvious congressional intent to provide Cuban

aliens who had been inspected and admitted or paroled into the United

States after January 1, 19b9 and who had resided for some time within the United States, with a partial assist toward meeting the residence

requirement for naturalization.

There are a considerable nurnber of Cuban aliens who after their

initial admission or parole into the United States after ,January 1,

1959, have found it necessary to proceed abroad temporarily for business, emergent family situations or other substantial reasons. Thereafter, they have proceeded abroad, often with the prior consent of

the gervice, which has issued to them advance authorization for parole

upon their return. It is inconceivable that Congress had intended to

deprive such aliens of the "head start" towards fulfilling the residence

requirement for naturalization, which the legislation bestows upon

other Cuban refugees who had not found it necessary to depart temporarily from this country.

In that connection, it should be noted that, in commenting upon S.

3712 as it was originally introduced, the Deputy Attorney General,

in a letter dated August 16, 1966 to the Chairman of the Senate Committee on the Judiciary made the following comment :

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Interim Decisicin #1691

It has been pointed out that a. number of Cuban parolees have made the effort

to depart from the United States for the sole purpose of procuring immigration

visas and haye returned as immigrants for permanent residence. Under the present law the date of the second arrival would be the applicable date in computing

residence time toward naturalization. It is questionable whether these Cubans

who have made the effort to adjust their status and probably through personal

sacrifice have expended funds to go out of the country and return as permanent

residents !pad be penalized and have a later arrival date than if they had

'stayed in the country as most Cuban parolees have done and who under this

Bill would have their status adjusted as of the date of original arrival.

It was apparently as a result of the Deputy Attorney General's comment quoted above that section 2 of the Act of November 2, 1966 was

enacted in its present form. That section provides that a Cuban refugee

who was lawfully admitted to the United States for permanent residence prior to November 2, 1966 may apply to have his admission for

permanent residence recorded as of the date he "originally arrived in

the United States as a nonimmigrant or as a parolee, or a date thirty

months prior to" November 2, 1966, whichever is the later.

Yet, although section 2 refers to the original arrival, and section 1

refers to the last arrival, it appears clear from the legislative history

that it was intended to confer, substantially the same retroactive benefit to eligible applicants under section 1 or 2 of the Act of November 2,

1966, with respect to fixing the date as of which the record of lawful

admission for permanent residence was to be created.

Therefore, we conclude that the term "last arrival" as used in section 1 of the Act of NoVember 2, 1966, and the term "originally arrived" as used in section 2 of that Act, must be interpreted with reference to other possible arrivals in the United States by the alien. In

section 1, the term "last arrival" refers to the alien's first arrival after

January 1, 1959 (at which time he was inspected and admitted or

paroled into the United States), as opposed to any arrivals by the

alien on or prior to January 1, 1959. The term "oriainally arrived"

as used in section 2 refers to the alien's first arrival after January 1,

1959 (at which time he was inspected and admitted or paroled into

the United States), as opposed to the date on which the alien subsequently arrived in the United States in possession of an immigrant

visa. Thus, it is submitted that the term "last arrival" as used in section 1 and the term "originally arrived" as used in section 2 both refer

to the same arrival in point of time, namely the alien's first arrival

after January 1, 1959 on which occasion he was inspected and admitted

or paroled into the United States.

It is our further view that a subsequent arrival should be considered

in computing the date as of which the record of lawful admission

should be created in the case of an applicant under section 1 of the

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Ant of November 2, 1066, only when the alien's subsequent arrival occurred after he had departed from the United States with the intention

of abandoning his residence in this country. On the other hand, a subsequent arrival after a temporary absence from the United States with

no intention on the applicant's part to abandon his residence in the

United States should not be regarded as the applicant's "last arrival"

within the contemplation of section 1 of the Act of November 2, 1966.

The foregoing conclusion is based upon the legislative history of

Public Law 89-732, from which it appears that Congress did not intend that an eligible applicant who had acquired a substantial period

of residence within the United States should be deprived of the retroactive benefit in ajudicating his status simply because such applicant

had found it necessary to depart temporarily from this country with

no intention of abandoning his residence i n the United States.

The applicant filed her application for creation of a record of admission for permanent residence with the Service on November 23,

1966 under section 1 of Public Law 89-732. The record establishes she

is a citizen of Cuba; that she has been physically present in the United

States for at least two years subsequent to January 1, 1959; that she

is eligible to receive an immigrant visa; that she is admissible to the

United States; and that she has executed and submitted the written

waiver of certain rights, privileges, exemptions and immunities -which

would otherwise accrue to her by reason, of her occupational status

as a member of an international organization, as required by 8 CFR

245.1(c) .

Based upon the reasons Set forth above, We find that applicant's

last arrival in the United States, for the purpose of this application,

occurred on September 15, 1959. We further find, pursuant to section 1,

that applicant is entitled to a creation of a record of lawful admission

for permanent residence as of a date thirty months prior to November 23, 1966, specifically May 23, 1964. Accordingly, we shall enter

the following order:

ORDER: It is ordered that the application be granted and a record

created showing applicant's admission into the United States for permanent residence as of May 23, 1964.

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