Matter of Lum, Interim Decision Number 1502

• Decision Date: 09 September 1965
• Docket Number: A-13705315,Interim Decision Number 1502
• Citation: 11 I&N Dec. 295
• Parties: MATTER OF LUM In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

11 I&N Dec. 295

MATTER OF LUM

In Deportation Proceedings

Interim Decision Number 1502

A-13705315

Board of Immigration Appeals

Decided by Board September 9, 1965

(1) Respondent, a 29-year-old native and citizen of China, who has lived in the United States since his arrival in 1951 when only 16 years of age; who has been regularly employed since leaving school in 1954; and who owns one-half interest in a restaurant which he manages and from which he averages $500 monthly has established that his deportation would result in "extreme hardship" within the meaning of section 244(a)(1), Immigration and Nationality Act, as amended, since the restaurant would have to close were he compelled to leave the country; he would lose this source of income; it is doubtful he would be able to earn a comparable income elsewhere; and he probably would suffer a substantial loss on his investment in the restaurant.

(2) Respondent's annual active duty for training in the Army National Guard of California, which was a federally recognized unit during the period of his membership, can be counted in the computation of the 24-month period of active-duty status in the Armed Forces of the United States pursuant to section 244(b) of the Act, as amended.

(3) The fact that respondent secured a United States passport in 1962 through continuation of his false claim to United States citizenship does not preclude a finding of good moral character.

CHARGE:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under 8 U.S.C. 1182(a)(20)—No immigrant visa.

This case is before us pursuant to the special inquiry officer's certification of his decision dated March 31, 1965 in which he ordered that the respondent's deportation be suspended under section 244(a)(1) of the Immigration and Nationality Act as amended.

Discussion as to deportability: The respondent is a 29-year-old married male, native and citizen of China, who first entered the United States on September 6, 1951 at which time he secured admission as the son of a United States citizen who was actually not his true father. The respondent obtained a United States passport in June 1962 and was absent from September 3, 1962 to December 3, 1962 when he last entered the United States and was admitted as a citizen. He was then returning to resume his residence in this country and was not in possession of an immigrant visa or other entry document required of an alien. He subsequently conceded his alienage and deportability, and we conclude that he is deportable on the charge stated above.

Discussion as to eligibility for suspension of deportation: The respondent's application for suspension of deportation was filed on September 24, 1964, and he is entitled to proceed under paragraph (1) of section 244(a) of the Immigration and Nationality Act since he is not deportable on any of the grounds referred to in paragraph (2). He is chargeable to the quota for Chinese persons which is oversubscribed and would not be able to adjust his immigration status otherwise than through suspension of deportation.

The respondent's parents died in China while he was a small child. He was not quite 16 years old when he came to the United States in 1951, and he then lived for some time with his grandfather who apparently had made the arrangements for him to come to the United States under the false identity. He attended school in Sacramento, California, until April 1954, completing the 11th grade. During the respondent's above-mentioned absence of three months in 1962, he traveled to Hong Kong where he married his wife, a native and citizen of China, who is now 20 years of age. She is attending school in Hong Kong and is supported by the respondent. They have no children.

The respondent has been physically present in the United States since September 6, 1951 with the exception of the absence of three months in 1962 and service in Germany while a member of the Army of the United States. His eligibility for suspension of deportation depends upon section 244(b) of the Act which requires honorable service for at least 24 months in an active-duty status in the armed forces of the United States. The respondent was inducted into the Army of the United States at Sacramento, California, on September 3, 1958 and was transferred to the Reserve on August 17, 1960, his total active service during this period being one year, eleven months and 15 days. The terminal date of his reserve obligation was September 2, 1964, and Exhibit 3(5) shows that he was honorably discharged from the Army of the United States on August 31, 1964. He enisted in the Army National Guard of California on December 4, 1960 and was honorably discharged on November 1, 1963 pursuant to his request for transfer to the Army Reserve. During his service with the Army National Guard of California, the respondent had 15 days of active duty for training in 1961, 1962, and 1963, a total of 45 days. If this 45 days can be added to the respondent's active service of...