Matter of Janati-Ataie
| Decision Date | 30 January 1972 |
| Docket Number | Interim Decision Number 2170,A-10761136 |
| Citation | 14 I&N Dec. 216 |
| Parties | MATTER OF JANATI-ATAIE In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The case comes forward on appeal by the Immigration and Naturalization Service from the decision of the special inquiry officer that the respondent was not deportable as charged and that the proceedings be terminated.
The respondent is a 33-year-old married male alien, a native and citizen of Iran, whose status in the United States, after his marriage to a United States citizen in 1962, was adjusted to that of a permanent resident under the provisions of section 245 of the Immigration and Nationality Act. The respondent and his wife have one child, who is a United States citizen by reason of birth in the United States.
In 1965 the respondent returned to Iran to visit his parents and he was absent from the United States for a period of 35 days. In 1968 he made a second trip to Iran to introduce his wife and child to his parents. He was absent from the United States this time for a period of 30 days.
On May 8, 1968, the respondent was convicted in the Second Judicial District Court of the State of Nevada in and for the County of Washoe of two offenses of embezzlement in violation of the Nevada Revised Statutes 205.300, which crimes were committed during the period of March 1, 1968 to April 10, 1968. As a result of his conviction he was sentenced to confinement in the Nevada state prison for a period of three years. He served part of his sentence but he is now on parole. The record indicates that he has made restitution of the money embezzled. It is on the basis of this conviction that he is charged with being deportable under section 241(a)(4) of the Immigration and Nationality Act.
Counsel for respondent argued that on the two above stated occasions when the respondent returned to the United States after his visits to Iran he did not make an "entry" into the United States as the term is delineated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), and therefore the crime for which he was convicted did not occur within five years after his only entry, which was as a student on November 30, 1958. The special inquiry officer upheld this contention and terminated the proceedings. The Service on appeal contends that the respondent made an entry on each of the two occasions when he returned to the United States in 1965 and 1968. This is the sole question for our determination.
Entry is defined in section 101(a)(13) of the Immigration and Nationality Act as follows:
The term "entry" means any coming of an alien into the United States, from a foreign port ... 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.
The court in Fleuti concluded that the "intent" exception contained in the above quoted provision, which became law in 1952, was for the protection of returning resident aliens and should be construed as meaning an intent to depart in a manner which could be regarded as meaningfully interruptive of the alien's permanent residence. The court stated that such intent can be inferred from the length of time the alien is absent, the purpose of his visit and whether the alien has to procure any travel documents in order to make the trip. The court further stated that no one of these criteria is conclusive and that the operation of these and other possibly relevant factors remains to be developed by the gradual process of judicial inclusion and exclusion.
Before the Fleuti decision in 1963 the courts held the view that a resident alien who returns to the United States after a brief excursion or after an absence for any period, however brief, makes a new entry within the meaning of the immigration laws and therefore is subject to all exclusionary provisions of the statute. The courts held that the term "entry" included any coming of an alien from a foreign port into the United States whether such coming be the first or subsequent one and that the word "entry" should be construed in its ordinary meaning, i.e., any coming into the United States, no matter how brief the period the person was absent.1
It is clear that the Fleuti decision was an attempt by the courts to ameliorate the harshness of these decisions. In the case before us now we are concerned very much with the respondent's intent when he left the United States. Did he intend to effect a meaningful interruption of his permanent resident status by departing in a manner disruptive of this status? After a careful review of the recent court decisions and the Board decisions relative to what constitutes an entry, we hold that the respondent in the instant case did not make an entry on the two occasions when he returned to his permanent residence in the United States.
The doctrine enunciated in Rosenberg v. Fleuti has indeed been the subject of development and interpretation in subsequent cases before this Board and before the courts. The principal cases are as follows.
In Matter of Guimaraes, 10 I. & N. Dec. 529 (BIA 1964), we held that standing alone, the fact that the alien did not intend to disrupt his permanent residence status was not decisive but that it was one factor to consider. In that case respondent went for a one month visit to relatives in Portugal, and we stated that it was clear that he did intend to depart the United States in a manner which was meaningfully interruptive of his status. And, in Matter of Caudillo-Villalobos, 11 I. & N. Dec. 15 (BIA, 1965), aff'd 361 F.2d 329 (C.A. 5, 1966), we held that where a permanent resident alien made numerous short trips to Mexico to appear before a clerk of the court to report and sign a bond book (he was convicted of a crime involving moral turpitude in Mexico) it clearly constituted an intended, meaningful departure from the United States. This case was decided principally on the basis of the purpose of his visit, which was not a casual type of thing. This Board has consistently held that where the purpose is to engage in an unlawful activity outside the United States, no matter how brief the visit to the foreign country, this would automatically subject the person to the consequences of having made an entry when he returns.2 In the instant case the respondent's departure, absence and return were in no way relevant to the underlying ground of deportability. The purpose of his trips, which is to be considered under Fleuti, was to visit his parents.
Fleuti was followed by Zimmerman v. Lehman, 339 F.2d 943 (C.A.7, 1965), cert. denied 381 U.S. 925, in which a resident alien who had been in the United States for 30 years made a five or six day vacation trip to Canada. The court considered that the alien's long legal residence in the United States, the fact that he was married to a United States citizen with three United States citizen children, and that he had a home and business in the United States, indicated that he did not intend to disrupt his permanent residence, and thus he did not make an entry when he returned.
The Zimmerman case was followed by Bregman v. INS, 351 F.2d 401 (C.A.9, 1965) (), in which the alien made visits to England on two occasions, one for approximately seven or ten days and the second visit for seven days. The court remanded the case to the Board to reopen with instructions that further consideration be given to the alien's intent at the time of departure, as the absences standing alone did not subject the alien to the consequences of having made an entry upon return. The case was resolved in the alien's favor by the special inquiry officer. In a decision by this Board in November of 1965, following the Bregman case, Matter of Quintanilla-Quintanilla, 11 I. & N. Dec. 432 (BIA, 1965), the alien visited Mexico for one week where he visited relatives and made a religious pilgrimage. We held that it was clear that he did not intend to interrupt his legal residence of many years in the United States. In that case he entered the United States with his alien registration card, which, the Board pointed out, must be carried by an alien at all times anyway. Finally, in Matter of Tafoya-Gutierrez, 13 I. & N. Dec. 342 (BIA, 1969), the alien, after being convicted of a crime in the United States and placed on probation, went to Mexico the day following his conviction and stayed there for six months. We considered that this length...
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