Interim Decision #2240

Interim Decision #2240

MATTER OF MALDONADO-SANDOVAL

In Exclusion Proceedings

A-17196433

Decided by Board October 31, 1973

(1) Upon return to the United States following a brief absence abroad of an alien

admitted for permanent residence, the legality of the alien's original admission for permanent residence can be questioned in exclusion proceedings in

connection with his application for readmission, notwithstanding the Fleutitype nature of his departure, and notwithstanding the absence of any indication that prior to his departure the lawfulness of his original admission for

permanent residence had been challenged.*

(2) Applicant, in the instant case, was admitted to the United States for

permanent residence on September 8, 1967, in pcissession of a special immigrant visa obtained by concealing from the consul his existing marriage to a

Mexican national and by fraudulently representing himself to be the spouse of

a U.S. citizen. Since he was not an alien having a lawful permanent residence

in the United States, his return to this country on May 25, 1970, following a

brief absence in Mexico is not within the ambit of Rosenberg v. Fleuti, 374 U.S.

449 (1962), and constitutes en "entry" within the meaning of section 101(a)(13)

of the Immigration and Nationality Act upon which to predicate a ground of.

exclusion.

EXCLUDABLE•

Act of 1952—SeFtion 212(a)(19) [8 U.S.C. 1182(a)(19)1—Obtained

visa by fraud.

Act of 1952—Section 212(aX20) [8 U.S.C. 1182(a)(20)]—Immigrant,

not in possession of an immigrant visa.

ON BEHALF OF APPLICANT:

Frederic A. Nervo, Esquire

995 Market Street

San Francisco, California 94103

ON BEHALF or SbliVICE:

Charles Gordon

General Counsel

This case is now before us on remand from the United States

Court of Appeals for the Ninth Circuit, pursuant to stipulation of

counsel dated August ft, 1972. That stipulation was based on our

decisions in unreported Matter of Lerma Acosta, A30 794 574 (BIA

June 13, 1972) and unreported Matter of Hernandez-Almaguer (BIA

June 14, 1972), which both counsel feel are inconsistent with the

Board's holding in this case. On August 6, 1971, the immigration

judge found the applicant excludable under the provisions of

section 212(a)(20) of the Immigration and Nationality Act and

-

*Order of Board vacated and case remanded for further proceedings; see 518

F.2d 278 (1975).

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directed that he be excluded and deported from the United States.

An appeal from this decision was dismissed by the Board on

November 22, 1971. Upon reconsideration, we are satisfied that no

change is warranted in the order of the immigration judge or in

our order dismissing the appeal therefrom.

The applicant is a 32 - year-old married male alien, a native and

citizen of Mexico, who was originally admitted to the United

States for permanent residence on September 8, 1967. He was then

in possession of a special immigrant visa issued on April 11, 1967

by an American consul in Mexico, who had found him to be exempt

from the labor certification requirement of section 212(a)(14) of the

Act as the spouse of a United States citizen. Although afforded

every opportunity to do so, the applicant has not established that

his prior marriage to a native and citizen of Mexico was legally

terminated so as to prove that his marriage to a United States

citizen is valid. He applied for admission as a returning resident

alien at San Ysidro, California on May 25, 1970. He was returning

from a two or three-day visit to Mexico. After an exclusion

hearing, the immigration judge concluded that the applicant's

original entry was not a lawful admission to permanent residence,

that he could not be considered a returning lawful permanent

resident, and that he is excludable under the provisions of section

212(aX20) for not having in his possession at the time of his

application for admission a valid immigrant visa or other valid

entry document.

The facts, about which there is no, dispute, have been fully

stated in the immigration judge's order and in our decision

dismissing the appeal. It is not necessary, therefore, to repeat

them.

In Matter of Lerma Acosta, supra, and Matter of Carbajal de

Garcia, Al? 206 984 (BIA December 5, 1969), both unreported, we

held that where a Fleuti-type departure was established (see

Rosenberg v. Flouti, below), a record of lawful admission for permanent residence existed, and the lawfulness of that admission was

questioned in exclusion proceedings, those proceedings should be

terminated; and that the lawfulness of the alien's original admission would have to be determined in deportation proceedings, in

which the standard of clear, convincing and unequivocal evidence

set up in Woodly v. INS, 385 U.S. 276 (1966) applies. We recede from

those holdings.

Entry is defined in section 101(a)(13) of the Immigration and

Nationality Act as follows:

-

The term "entry" 'imam 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

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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.

The language of section 101(a)(13) of the Act is clear. But for the

exception of "an alien having a lawful permanent residence in the

United States," the statute expressly defines the term "entry" for

all other aliens to mean "any coming of an alien into the United

States from a foreign port or place or from an outlying possession,

whether voluntarily or otherwise." The doctrine enunciated in

Rosenberg v. Fleuti, 374 U.S. 449 (1963), is that an innocent, casual

and brief excursion by a resident alien outside the country's

borders may not have been "intended" as a departure disruptive

of his resident alien status and that he, therefore, may not have

subjected himself to the consequences of an "entry" into the

United States on his return. The pertinent portion of section

101(a)(13) interpreted by the Supreme Court in the Fleuti case, by

its terms, relates only to "an alien having lawful permanent

residence in the United States."

In Lerrna-Acosta, supra, we cited Wadman v. INS, 329 F.2d 812

(C.A. 9, 1964) and Itzcovitz v. Selective Service Local Bd. No. 6, N.Y.,

N.Y., 447 F.2d 888 (C.A. 2, 1971) in support of our posture that the

Fleuti rationale should be applied in exclusion proceedings in the

case of an alien whose original entry was unlawful. We agree with

the Service's position stated in its motion for reconsideration that

there is no authority in either Wadmau, supra, or Itzcovitz, supra,

to justify such a conclusion. These two cases did not reach the

question of whether the legality of the aliens' immigrant status

could have been questioned in exclusion proceedings upon return

to the United States after a brief trip to Mexico.

Itzcovitz, supra, is not relevant to this case. It was a deportation

proceeding and Itzcovitz was a lawful permanent resident alien.

The case arose from a long history of dispute between the alien

and both the Selective Service System and the Immigration and

Naturalization Service. The alien sought a declaratory judgment

that a contemplated three - week trip to Israel, to undertake a

training course required by his employer,' would not involve an

entry within the meaning of section 101(a)(13) upon his return to

the United States. The Second Circuit found that the alien would

come within the Fleuti exception. While noting that the duration

of the proposed trip—three weeks—would be longer than any

previously held not to involve entry, the Court observed that it

would still be of short duration. It stressed that the purpose of the

trip would be to fulfill an employer's requirement for training and

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would not reflect merely personal reasons. Further, and perhaps

most important, the Court emphasized that the alien was "not in

the posture of having taken the trip in disregard of the immigration consequences; rather he *** sought relief in advance" by

bringing the declaratory judgment action. 447 F.2d at 894. See

Matter of Janati-Ataie, Interim Decision No. 2170 (BIA 1972; A.G.

1972).

In Wadman v. INS, supra, and Wong v. INS, 358 F.2d 151 (C.A. 9,

1966), the only issue decided by the court was that in deportation

proceedings the benefits of suspension of deportation under section 244 of the Act apply not only to aliens whose original entry

into the United States was legal but also to those who entered

illegally. In these cases the legality of the aliens' original admission for permanent residence was not questioned upon the aliens'

return to the United States after a short trip to Mexico. In both

cases the aliens were not detained for exclusion proceedings. They

were admitted as returning resident aliens and sometime later

deportation proceedings were commenced against them. Under

these circumstances, the court determined that a brief visit to

another country did not break the continuous period of physical

presence in the United States required to establish eligibility for

suspension of deportation..

Section 235(b) of the Act prescribes the manner in which an

inquiry is to be conducted for all aliens arriving at ports of the

United States. Section 236 sets forth the procedure "to determine

whether an arriving alien shall be allowed to enter or shall be

excluded and deported." This section of the Act further provides

that the determination by the immigration judge "shall be based

only on the evidence produced at the inquiry" and "shall be the

sole and exclusive procedure for determining admissibility." There

is no authority in this statute for proceedings partly in exclusion

and partly in deportation. Even Kwong Hai Chew v. Golding, 344

U.S. 590 (1952), which deals with due process rights of a lawfully

admitted returning alien to be notified of charges against him and

to be heard in opposition thereto, does not reach the question of

whether the alien is to be treated in exclusion or deportation

proceedings.

Pursuant to section 211(a) of the Act, an immigrant is required

to present an entry document at the time of application for

admission. However, under section 211(b), a returning resident

immigrant defined in section 101(a)(27)(B) may be readmitted to

the United States by the Attorney General in his descretion, under

such conditions as may be by regulations prescribed, without

being required to obtain documentation authorizing reentry. Sec-

tion 101(a)(27)(B) defines a returning resident immigrant as "an

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immigrant, lawfully admitted for permanent residence, who is

returning from a temporary visit abroad." The Service has by

regulations (8 CFR 211.1(b)) provided that in lieu of an immigrant

visa, an immigrant alien returning to an unrelinquished lawful

permanent residence in the United States after a temporary

absence abroad not exceeding one year may present Form I-151,

Alien Registration Receipt Card.

Section 291 of the Act provides that whenever any person makes

application for admission, or otherwise attempts to enter the

United States, the burden of proof shall be upon him to establish

that he is not subject to exclusion under any provision of the Act

and, "if an alien, that he is entitled to the nonimmigrant, quota

immigrant, or nonquota immigrant status claimed, as the case may

be." (Emphasis supplied.) When the applicant appeared at the port

of entry on May 25, 1970, he did not present a Form 1-151. He

claimed that when he left for Mexico for his two or three-day visit

he had a temporary 1-151 and that he lost it while there. The

applicant's immigrant visa (Ex. 3), produced by the Service at the

exclusion hearing, shorts that the applicant was admitted to the

United States as an immigrant on September 8, 1967 at San

Ysidro, California in the nonquota classification SA-1, an alien

born in an independent country of the Western Hemisphere. In

order to qualify for admission as a returning resident alien as

specifically defined in the statute, i6 was necessary that (1) the

applicant have the status of a lawfully admitted immigrant for

permanent residence and (2) that if he had that status, he was

returning from a temporary visit abroad. Accordingly, when the

immigration inspector had some doubt about this applicant's

immigrant status, he properly detained him for exclusion proceedings.

The evidence elicited at the exclusion hearing clearly shows that

the applicant concealed from the United States Consul his existing

marriage to a Mexican national, represented that he was married

to a United States citizen, and secured an exemption from the

labor certification requirements of the statute, and a visa, all on

the basis of the illegal marriage. Although the applicant presented

a decree showing that he was divorced from his wife in Mexico on

June 19, 1965, investigation revealed that no such divorce was ever

granted and that the document he presented was fraudulent. Our

evaluation of the evidence presented at the exclusion hearing

convinces us that there is not the slightest question that from the

inception of his residence in the United States he was fully aware

that he had obtained his visa illegally, had entered illegally with

that document, and that his residence thereafter was illegal. In

this case, the Seryice has proven beyond any question, under any

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standard of proof, that the applicant has never achieved the

status of a lawful permanent resident alien.

Since the applicant was not an alien having lawful permanent

residence in the United States, his attempted entry to the United

States after a brief absence in Mexico is not within the ambit of

Rosenberg v. Fleuti, supra. Under the explicit terms of section

101(013) of the Act, the applicant's return to the United States

even though only after a brief visit, is an "entry." Hence, an

adjudication of the applicant's admissibility in exclusion proceedings is proper.

It has been established that the respondent is not a lawful

permanent resident alien. At the time of his application for

admission, he was not in possession of a valid unexpired immigrant visa or other valid entry document as required under section

212(a)(20) of the Act. We are satisfied that the record supports the

immigration judge's finding of excludablility. After reconsideration of our previous decision, the following order will be entered.

ORDER: No change is made in the Board's order dated November 22, 1971.

Maurice A. Roberts, Chairman, Dissenting:

I disagree with the conclusion reached by the majority of this

Board. I would terminate the proceedings.

The applicant is an alien who was admitted to the United States

for permanent residence on July 31, 1967 on presentation of an

immigrant visa. After a two-day visit with relatives in Mexico, he

applied for readmission as a returning permanent resident and

was excluded. There is no indication that prior to his departure

the lawfulness of his original admission for permanent residence

had been challenged by the Immigration and Naturalization

Service. It is clear that this brief, casual and innocent departure

would not be considered meaningfully interruptive of his permanent residence here under the guidelines laid down in Rosenberg v.

Fleuti, 374 U.S. 449 (1963), had the lawfulness of his original

admission remained unquestioned. The issue presented is

whether, in the face of such a Fleuti-type departure, the lawfulness of the original admission should be adjudicated in exclusion

proceedings, as here, or in deportation proceedings, in which the

alien would have an array of additional rights and remedies.

The importance of the issue transcends the immediate facts of

this case. There is no general statute of limitations in the immigration laws. Thus, the principle laid down by the Board today applies

not only to the subject of this proceeding, who had resided here for

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under three years before he made his brief departure, but governs

also the cases of aliens who have lived here continuously as

permanent residents for fifty years or more.

In our unreported decision in Matter of Carbajal de Garcia (A17

206 984, December 5, 1969) we stated:

...Where there exists a record of lawful admission for permanent residence,

and the lawfulness of that admission is called into question in exclusion

proceedings, the proceedings should be terminated, as here, where a Fleuti-type

departure is made out. This leaves the way open for the Service to issue an

Order to Show Cause in deportation proceedings, if it so desires, challenging the

lawfulness of the applicant's original admission. The applicant would then be in

the same position as if she had never departed from the United States. The

Government would have to establish her deportability by clear, unequivocal and

convincing evidence and she would have access to all the remedies available to

resident aliens.

We later adhered to that rule in our unreported decision in

Matter of Lerma-Aeosta (A30 794 574, June 13, 1972). We there

stated:

...We conclude that [the Carbajal de Garcia] rule, which we apply to this

case, is in keeping with the congressional intent underlying section 101(a)(13)

of the Art, AS construed in Fleuti .

As the Supreme Court pointed out in Fleuti, 374 U.S. at 461-462, "the

insignificance of a brief trip to Mexico or Canada bears little rational relation

to the punitive consequences of subsequent excludability...Mt effectuates

congressional purpose to construe the intent exception to 101(a)(13) as

meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence." Rejecting the notion

that the statutory definition of "entry" was to be rigidly and literally applied,

the Court left the way open for the relevant factors to be developed "by the

gradual process of judicial inclusion and exclusion." It noted that "The more

civilized application of our immigration laws given recognition by Congress in

101(aX13) and other provisions of the 1952 Act protects the resident alien

from unsuspected risks and unintended consequences of such a wholly innocent action" (p. 462).

The difference between the rights of aliens in exclusion and deportation

proceedings was pointed out in Leng May Ma v. Barber, 357 U.S. 185 (1957).

Other crucial distinctions have since emerged. The alien in expulsion proceedings is entitled to all the procedural safeguards spelled out in section 242(b) of

the Act. The Government bears the burden of proof and deportability must be

established by the "clear, unequivocal, and convincing" rule laid down in

lVoodby v. INS, 385 U.S. 276 (1966). Various substantive rights are available in

expulsion proceedings: The alien may designate the country of deportation

under section 243(a). He may seek temporary withholding of deportation on

persecution grounds under section 243(h). He may apply for suspension of

deportation or voluntary departure under section 244, or for adjustment of

status under section 245 or section 249. Finally, if aggrieved by the final

decision of this Board, the alien in a deportation proceeding has direct

recourse to a court of appeals and an automatic stay of deportation under the

statutory form of judicial review provided by section 106(a) of the Act.

The alien in an exclusion proceeding is governed by an entirely diffqrent set

of principles. No matter how long he may have resided here before his brief

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departure, or how deserving his case may be, the alien seeking admission is

ineligible for suspension of deportation, voluntary departure, or section 243(h)

relief. If ordered excluded, he may not select the country of deportation but

under section 237(a) must be returned to the country whence he came. Under

section 106(b), judicial review of a final exclusion order may be had "by habeas

corpus proceedings and not otherwise."

The courts have construed section 101(a)(13) as evincing a congressional

intent to ameliorate the harshnessof the old "reentry" doctrine. In Wadman

v. INS, 329 F.2d 812 (C.A. 9, 1964), the Fleuti rationale was applied in a

suspension of deportation context in the ease of an alien whose original entry

was unlawful. And see ftzcovitz v. Selective Service Local Bd. No. 6, N.Y., N.Y.,

447 F.2d 555 (C.A. 2, 1971).

It is true that section 101(a)(13) in terms refers to an alien "having a lawful

permanent residence in the United States." However, we think that it does

not do violence to the congressional intent, but rather is in keeping with the

provision's ameliorative purpose, to construe it as applicable to cases such as

this, where there exists a record of lawful admission for permanent residence.

Where the Service questions the lawfulness of that admission, following a

Fleuti-type departure, to require the Service to make that challenge in

deportation proceedings obviates the irrational effects which would otherwise

flow from such a meaningless, brief departure. This approach is consonant

with the congressional design that an alien's substantial rights should not be

adversely affected by such a casual and innocent action.

Any other conclusion would be incompatible with the ameliorative purpose

of section 101(a)(13). To restrict the Fleuti doctrine exclusively. to situations

where the alien's original entry was lawful would open the door to results that

Congress could hardly have contemplated. To cite just one, a deportable alien

with long years of physical presence who would be clearly eligible for

suspension of deportation would suddenly lose access to this valuable privilege

if he stepped across one of our land borders, however briefly. The possibility of

such an irrational consequence is obviated by the conclusion we now reach. At

the same time, this solution imposes no substantial impediment to effective

enforcement of the immigration laws.

Ten years have 'now elapsed since Fleuti was announced.

Congress has evinced no displeasure with its benign approach to

the reentry doctrine. In my estimation, the rule we laid down in

Carbajal de Garcia, and Lernza-Acosta was in keeping with the

Congressional intent underlying section 101(a)(13) of the Act, as

construed in Fleuti. I would not recede from that rule.

482