T-303081
Decided by the Board June 23, 1953
Suspension of deportation — Section 244 (a) of the Immigration and Nationality Act — Physical presence.
In order to be eligible for suspension of deportation pursuant to section 244 (a) of the Immigration and Nationality Act of 1952, an alien must show that he was actually residing and physically present in the United States for the period required by the subsection under which he applies for such relief. Service on vessels of United States registry does not meet the requirements of the statute since actual physical presence is required and not constructive presence or residence.
BEFORE THE BOARD
Discussion: The issue in the case at bar involves counsel's request that the respondent's deportation be suspended under the provisions of section 244 (a) (1) of the Immigration and Nationality Act of 1952. The record relates to a 44-year-old male, native and citizen of China, who has resided continuously in the United States since last entering at Seattle, Wash., on August 7, 1952, as a seaman, at which time it was his intention to remain permanently in the United States. The respondent's application for suspension of deportation has been denied by the special inquiry officer and his reasons therefor are set forth in detail in his decision of January 13, 1953. The record shows that the respondent first entered the United States at San Francisco, Calif., in May 1942, at which time he was admitted as a seaman. He resided ashore in the United States from May 1942 until 1945 when he resumed his calling as a seaman. From March 1945 until his last entry in August 1952, the respondent served continuously aboard vessels of United States registry. The remaining facts in this case have been heretofore fully covered and need not be discussed further herein.
Counsel's contention that the respondent's service on vessels of United States registry enabled him to meet the requirements of section 244 (a) (1) of the Immigration and Nationality Act with respect to his being physically present in the United States is without merit. Section 244 (a) (1) of the aforementioned Act among other things provides that an alien to be eligible for the relief provided therein, must have been physically present in the United States for a continuous period of not less than 7 years immediately preceding the date of his application for such relief. The term "physically present" means that an alien must have been actually physically present in the United States for 7 years, immediately preceding the date of his application for suspension of deportation and it is clear that this term does not mean constructive presence or residence in the United States through service on vessels of United States registry. Therefore, the respondent, to be eligible for suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act of 1952, must show that he actually was physically present in the United States for a continuous period of 7 years beginning on January 13, 1946, and ending on the date that he submitted his application for suspension of deportation.
The record discloses that the respondent, in the guise of a seaman, has entered the United States for permanent residence. Counsel cites as authority for his contention that the respondent by virtue of his service aboard vessels of United States registry, has been physically present in the United States for seven consecutive years, the language contained in section 316 (a) and section 330 of title 3 of the Immigration and Nationality Act of 1952. These sections relate to nationality through naturalization and before an alien can obtain the benefits provided in the aforementioned sections, he must have been first admitted to the United States for permanent residence. We do not believe that the language relating to physical presence in the United States as set forth in section 316 (a) and section 330 (a) of the Immigration and Nationality Act of 1952 is controlling in the case at bar. Under the provisions of sections 316 (a) and 330 (a), an alien must have been lawfully admitted to the United States for permanent residence, as a condition precedent to obtaining the benefits provided in the aforementioned sections of the Immigration and Nationality Act of 1952.
In the case at bar, Congress, as a condition precedent to the grant of suspension of deportation, provided, among other things, that an alien must have been physically present in the United States for a continuous period of not less than 7 years immediately preceding the date of his application for suspension of deportation. We take this to mean actual physical presence in the United States, not constructive presence. It is the considered opinion of this Board that an alien to be eligible for the relief provided in section 244 (a) of the Immigration and Nationality Act of 1952, must show that he was actually residing and physically present in the United States for a period of seven consecutive years immediately preceding the date of his application for the discretionary relief of suspension of deportation. In view of the foregoing, we have no alternative but to affirm the decision of the special inquiry officer. Accordingly, the following order will be entered.
Order: It is ordered that the appeal be dismissed.