Interim Decision #1297.

Interim Decision #1297.

MATTER or Woo

In DEPORTATION Proceedings

A-11822728

Decided by Board August 13,1963

While an applicant for suspension of deportation who is exempt from the requirement of any specified period of continuous physical presence as provided by

section 244(b), Immigration and Nationality Act, as amended, is also exempt

from the necessity of establishing good moral character for the period coextensive with the physical-presence period, he must establish good moral.

character between the date he filed his suspension application and the date

it is finally adjudicated. Conduct prior to the filing date can be considered

in determining whether good moral character has been established during the period in question.

CHARGE :

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Excludable

at entry under section 212(a) (20)—No immigrant visa.

The special inquiry officer on June 18, 1963 entered an order granting the respondent's request that his deportation be suspended under

the provisions of section 244 (a) (1) of the Immigration and Nationality Act and directed that the case be certified to this Board for final

d.eoision in accordance with the applicable regulations. The respondent, a 28-year-old married male, native and citizen of China, was

first admitted to the United States at San Francisco, California on

March 24, 1948 under the name of Louie Chung Ring as the United

States citizen son of Louie Sheuck Yu, a native-born citizen of the

United States. The respondent last entered the United States at

Travis Air Force Base on or about May 16, 1960 as a member of the

United States Armed Forces. Deportation proceedings were instituted.

against the respondent on February 14, 1962.

Hearings in deportation proceedings were held at Seattle, Washington on March 6 and March 20, 1902, at which time the respondent

and counsel admitted the truth of the factual allegations set forth in

the order to show cause and conceded deportability on the chargestated

therein. The respondent was not a citizen of the United -States on the

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occasion of his initial admission at San Francisco, California in March

1948 or when he last entered the United. States as a member of the

armed forces in May 1960. The decision of the special inquiry officer

directing that the respondent be deported from the United States to

Hong Kong or in the alternative to Formosa became final when no

appeal was taken therefrom. The evidence of record clearly establishes that the respondent is subject to deportation under the provisions

of section 241( a) (1) of the Immigration and Nationality Act, in

that, at the time of entry he was within one or more of the classes of

aliens excludable by the law existing at the time of such entry, to wit,

aliens who are immigrants not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry

document and not exempted from the possession thereof by said Act

or regulations made thereunder, under section 212 ( a) (20) of the Bruntgration and Nationality Act.

The respondent's motion requesting that the proceedings be reopened

for the purpose of affording him an opportunity to prosecute an application for suspension of deportation under the provisions of section

244 of the Immigration and Nationality Act as amended by the Act of

October 24, 1962 was granted by the special inquiry officer on January

25, 1963. For the reasons hereinafter set forth, the special inquiry

officer's decision of June 18, 1963 granting the respondent's application

for suspension of deportation under section 244 of the Immigration

and Nationality Act, as amended, will be approved. The evidence

adduced at the reopened hearing held at Seattle, Washington on February 1, 1963 establishes that the respondent was born in Hong Kong,

British Crown Colony, on June 6, 1935; that ho attended primary

school in Hong Kong until he was 12 years of age, at which time

arrangements were made by his father, then a. resident of the United

States, to have the respondent enter the United States as the son of

one Louie Sheuck Yu, a native-born citizen of the United States. The

respondent's testimony indicates that after his admission. to the United

States he retained his assumed identity of Louie Chung Hing; that

he completed high school in the United States and joined the Washington State National Guard in 1956.

The respondent enlisted in the Regular Army of the United States

on September 7, 1957. He served continuously therein until his honorable discharge therefrom on May 16, 1960, a period of two years and

eight months, at which time he was transferred to the United States

Reserve Corps. While a member of the armed forces of the United

States stationed in Guam, the respondent secured leave and went to

Hong Kong, British Crown Colony, where he was married on Jannary 30, 1959 to one Tso Lai Jen, a native and citizen of China. (Ex.

7) A son, now two years of age, was born of this union in Hong

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Kong, British Crown Colony. The respondent's petition for the issuance of a nonquota immigrant visa, to his wife subscribed and sworn

to before a United States Consular Officer at Hong Kong, British

Crown Colony, on February 6, 1959 failed to receive favorable consideration because the respondent was unable to submit any evidence in

support of his claim that he was a United States citizen and he refused

to submit to blood grouping tests. The respondent when questioned

under oath by an officer of the Service at the office of the American

Consulate in Hong Kong, British Crown Colony, on June 29, 1959

reiterated his false claim of being a citizen of the United States and

deposed that his father was Louie Sheuck Yu, a native-born citizen

of this country.

The respondent's application requesting that his deportation be suspended under sections 244(a) (1) and 211(b) of the Immigration and

Nationality Act was subscribed, sworn to and submitted for considera-

tion at the Seattle, Washington office of the Service on February 1,

1963. Section 241(b) of the Immigration and Nationality Act as

amended by the Act of October 24, 1962 provides that the requirements

of continuous physical presence in the United States specified in paragraphs (1) and (2) of subsection (a) shall not be applicable -to an alien

who has served for a minimum period of 24 months in an active duty

status in the armed forces of the United States and, if separated from

such service, was separated under honorable conditions. As previously noted, the respondent served honorably in the United States

Armed Forces on an active duty status for a continuous period of two

years and eight months. This Board held in Matter of P—,

A-11402870, decided June 10, 1063, that an applicant who is exempt

from the requirements of any specified period of continuous physical

presence as provided in section 244 (b) of the Immigration and Nationality Act is also exempt from the necessity of establishing good moral

character for the period coextensive with the physical presence period;

that the alien in such case must establish good moral character between

the date of the filing of his application for suspension of deportation

and the date that it is finally adjudicated and the alien's conduct prior

to the date of filing can be considered in determining whether good

moral character has been established during the period in question.

The only manner in which the respondent's immigrant status can

be adjusted is by suspension of deportation. He is ineligible for adjustment of status under section 245 of the Immigration and Nationality Act because the quota for Chinese persons is pre-empted in all

categories for an indefinite period and he cannot qualify for the

creation of a lawful record of admission under section 249 of the Act.

The record reflects the respondent has never been affiliated with any

subversive or proscribed organizations. Except for traffic arrests, the

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:respondent has no criminal record in the United States or elsewhere.

independent character investigations conducted by the Service are

.entirely favorable to the respondent's application for the discretionary

.relief of suspension of deportation. He has maintained an excellent

-employment record and his present employer describes him as a conscientious person of good character and reputation, without objectionable traits or bad habits. The respondent's fraudulent admission

to the United. States in March 1948 as a citizen thereof and his retention

of the assumed identity under which he was admitted to the United

States in 1948 as well as his continuing to claim to be a citizen of the

United States until sometime after his discharge from the United

States Armed Forces in May 1960 are acts which should not be charged

against the respondent inasmuch as he was only a child 12 years of

age when his natural father , then a resident of the United States,

arranged to have him admitted to the United States as the citizen son

of Louie Sheuck Yu, a United States citizen.

The respondent has been a resident of the United States sines he was

12 years old, a period of more than 15 years. His military record in

the United States Army is excellent. Moreover, he speaks good English and enjoys a good reputation among associates and employers.

Persons who have known the respondent for many years attest that

he is a person of good moral character and loyal to the United States.

Clearly, his deportation from the United States would result in extreme hardship to himself. On the basis of all the evidence in this

record, we find that the respondent has established good moral character and is statutorily eligible for the discretionary relief of suspension of deportation under section 244(a) (1). For the reasons herein-

before set forth, no change will be made in the order of the special

inquiry officer granting suspension of deportation.

ORDER: It is ordered that the deportation of the alien be suspended under the provisions of section 244(a) (1) of the Immigration

and Nationality Act..

It is fv.rther ordered that if the Congress takes no action adverse

to the order granting suspension of deportation, the proceedings be

cancelled, and the alien, if a quota immigrant at the time of entry not

then charged to the appropriate quota, be so charged as provided by

law.

It is further ordered that in the event Congress takes action adverse

to the order granting suspension of deportation, these proceedings

shall be reopened upon notice to the alien.

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