Interim Decision #3212

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, 374 U.S. 449

(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, 8 U.S.C. § 1160 (1988

& Supp. IV 1992).

CHARGE:

Order: Act of 1952—Sec. 241(a)(4) [8 U.S.C. § 1251(a)(4)j—Crime involving moral

turpitude

ON BEHALF OF SERVICE:

Veronica Rubi

General Attorney

ON BEHALF OF RESPONDENT:

Pro se

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, 8 U.S.C. § 1160

(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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Interim Decision 03212

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, 8 U.S.C.

§ 1251(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, 374 U.S. 449 (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, 8 U.S.C. § 1101(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.

Id. at 462-63.

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, 791 F. Supp. 262

(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. Id.

at 265.

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., 805 F. Supp. 619 (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. Id. at 621.

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-, 20 I&N Dec. 715 (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, 8 U.S.C. § 1153

(Supp. IV 1992). See 8 C.F.R. §§ 210.4(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, 8 U.S.C.

§ 1182(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, Pub. L. No. 99-603,

100 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, 464 U.S. 183 (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, 568789 (discussing abuses in the Bracer& program of the 1960's).

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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; 8

C.F.R. § 210.3(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 longterm residences in this country. C1 Campos v. Smith, supra (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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The immigration judge's order terminating these

ORDER:

deportation proceedings is vacated.

The record is remanded to the immiFURTHER ORDER:

gration judge for further proceedings in accordance with the foregoing

opinion.

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