JANATI-ATAIE

Interim Decision #2170
MATTER OF JANATI-ATAIE
In Deportation Proceedings
A-10761136
Decided by Board January 30, 1972, and April 30, 1972
Decided by Attorney General October 26, 1972
A lawful permanent resident alien who procured the necessary travel docu-
ments for himsef and his family and traveled thousands of miles for a visit of a
month with his parents in Iran, made a conscious and intended departure in a
manner which is meaningfully interruptive of his permanent resident status.
Hence, upon return to the United States following his absence of a month to
Iran, such alien made an entry within the meaning of section 101(a)(13) of the
Immigration and Nationality Act upon which to predicate a ground of
deportation.
CrIARGZ;
Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)]—Convicted of a crime
involving moral turpitude committed within 5 years
after entry and sentenced to prison for a period of 1 year
or more.
ON BEHALF OF RESPONDENT:
Jack Wasserman, Esquire
Warner Building
Washington, D.C. 20004
Gordon C. Shelley, Esquire
1117 Forest Street
Reno, Nevada 89502
(Counsel of record)
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney
Stephen M. Suffin
Trial Attorney
(Brief filed)
BEFORE THE BOARD
(January 30, 1972)
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
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interim Decision #2170
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 commit-
ted 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(aX13) 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 con-
tained 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
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Interim Decision #2170
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 meaning-
ful 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 (B IA 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), affd 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
'Volpe v. Smith, 289 U.S. 422 (1932); Chew v. Colding, 344 U.S. 590 (1952);
Bonetti v. Rogers, 350 U.S. 001 (1058).
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Interim Decision #2170
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? 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
Statec, indicated' that he did not intend to disrupt his permanent
residence, andthus he did not make an entry when he returned.
The Zimmerman case was followed by Bregrn an v. INS, 351 F.2d
401 (C.A.9, 1965) (decided ten months after the Zimmerman case).
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 Boa!rd in November of
1965, following the Bregman case, Matter of Quintanilla-Quintan-
illa, 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
2 Mcitter of Corral-F'ragoso, 11 I. &. N, Dec. 478 (BIA, I966); Matter of Wood, 12
I. & N. Dec. 170 (BIA, 1967); Matter of Valencia-Barajas, Interim Decision No.2001
(BIA, 1969).
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Interim Decision #2170
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 of time plus the facts that he had no
job to return to, and no family or property in the United States,
constituted an intended, meaningful interruption of his permanent
residence status.
All the cases since Fleuti, both before this Board and the courts,
cited above and others, indicate quite clearly that no one factor is
conclusive as to whether there was a meaningful interruption of
the alien's legal, permanent residence status, but they , further
indicate that most careful consideration must be given to the
intent factor. The- importance of the "intent" element has been
emphasized in all recent cases regarding entry.
It is our opinion that the respondent in the instant case did not
make an entry when he returned from the two trips to-Iran. The
length of time he was away was a reasonable minimum time in
which to travel to Iran for a visit with his parents. Also, this
Board has never held that the distance from the United States of
the country to which the alien goes is determinative, considering
the swift jet airplane travel available.
It is true that the respondent did have to renew his Iranian
passport, but here again no one factor is controlling. His intent not
to interrupt or abandon permanent residence is indicated by the
following facts: That his trips were of relatively short duration,
that he had both real and personal property here, that he had an
established home here, that he had a permanent steady job to
which he was returning, that his wife and child, both United
States citizens, are living with him here, and that the purpose of
his trips was to visit his parents.
We will affirm the decision of the special inquiry officer termi-
nating the proceedings and will dismiss the Service appeal.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
BEFORE THE BOARD
(April 30, 1972)
The Immigration and Naturalization Service has filed a motion
asking that we reconsider and withdraw our order of January 30,
1970; find respondent deportable; and remand to the special
inquiry officer for further proceedings.
The facts, about which there is no dispute, have been fully
stated in the special inquiry officer's order and in our opinion
dismissing the appeal therefrom. It is not necessary, therefore, to
repeat them.
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Interim Decision #2170
We have given most careful consideration to the briefs filed, and
after such consideration we hold that our decision of January 30,
1970 correctly interprets the facts and the law relating to the
matter before us. Accordingly the motion to reopen the proceed-
ings will be denied.
ORDER: It is ordered that the motion be and the same is
hereby denied.
BEFORE THE ATTORNEY GENERAL ON REVIEW
(October 26, 1972)
The Board of Immigration Appeals, at the request of the
Commissioner of Immigration and Naturalization, has referred
this case to me for review pursuant to 8 CFR 3.1(hX1Xiii). The
Board has denied a motion of the Immigration and Naturalization
Service for reconsideration of the Board's order dismissing an
appeal by the Service from the decision of a special inquiry officer
holding respondent not deportable.
Respondent is a native and citizen of Iran. He was admitted to
the United States in 1958 as a student and subsequently his status
was adjusted,. in 1962, to that of a permanent resident on the basis
of his marriage to a citizen of the United States. The respondent
and his wife have one child born in the United States.
He left the United gtates for a visit to Iran for a period of 35
days in 1965, and again visited Iran for a period of 30 days in 1968.
Thereafter in the latter year, he was convicted in a Nevada state
court on two counts of embezzlement committed that year, and
sentenced to confinement in prison for a term of three years.
The instant proceedings were instituted by the Immigration and
Naturalization Service under section 241(a)(4) of the Immigration
and Nationality Act ("the Act"), 8 U.S.C. 1251(aX4), which author-
izes the deportability of any alien who
is convicted of a crime involving moral turpitude committed within five years
after entry and either sentenced to confinement or confined therefor ... for a
year , or move. (Emphasis added.)
The term "entry" is defined in section 101(aX13) of the Act, 8 U.S.C.
1101(aX13), to mean
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 in an outlying possession was not voluntary.... (Emphasis added.)
The issue in this matter is whether respondent's returns to the
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Interim Decision #2170
United States following his 1965 and 1968 trips to Iran fell within
the portion of the first exception to section 101(aX13) of the Act
that is underlined above. If so, neither of the returns involved an
"entry" within the meaning of section 101(a)(13) and respondent is
not deportable under section 241(aX4).
The Board's affirmance of the Special Inquiry 'Officer's decision
that respondent is not subject to deportation is based on its
reading of Rosenberg v. Fleuti, 374 U.S. 449 (1963), the controlling
precedent here. That case raised the question whether a resident
alien had made an "entry", as defined in section 101(aX13), and
thus could be deported under section 241(a)(1), 8 U.S.C. 1251(aXl),
as being within a certain class of aliens excludable "at the time of
such entry." Fleuti, a Swiss national who had resided here almost
four years, left the United States, stayed in a Mexican border town
for a few hours and returned. The Supreme Court concluded that,
under some circumstances, such an "innocent, casual, and brief'
trip across a border would fall within the first exception to the
definition of "entry" in section 101(aX13). More particularly, the
Court construed what it called this "intent exception" as meaning
"an intent to depart in a manner which can be regarded as
meaningfully interruptive of the alien's permanent residence". 374
U.S. at 462. Among the factors to be considered in passing on the
issue of intent in this context, said the Court, are the length of
time the alien is absent, the purpose of the visit outside the United
States and whether the alien has to procure any travel documents
in order to make his trip "since the need to obtain such items
might well cause the alien to consider more fully the implications'
involved in his leaving the country." Ibid.*
The lower courts, as well as the Board, have had a number of
Occasions to consider the reach of Fleuti. In de Bilbao-Bastida v.
INS, 409 F.2d 820 (C.A. 9, 1969), cert. dismissed, 396 U.S. 802, the
Court held there was an entry where the alien returned after a
two-month trip which included an illegal visit to Cuba. The Court
noted that two months is "considerably longer than the 'couple of
hours' that Fleuti was absent" 409 F.2d at 823. Moreover, it also
took note of the fact that travel documents were necessary for
portions of the trip.
The Board has found that an entry occurred • in each of three
different years when an alien returned after spending a month's
vacation . in Mexico visiting his family. Matter of Abi-Rached, 10 L
& N. Dec. 551 (1964). The Board distinguished Fleuti, stating that
* Since, however, attention had not been previously focused upon the applica-
tion of §101(a)(13) to the case, the Court viewed the record as inadequate for that
PurPose and remanded the case for further consideration of the issue.
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Interim Decision #2170
one month "does not fall within the Supreme Court references to
the brief absence of one who 'merely stepped across an interna-
tional border'." (p. 552) Similar reasoning was employed in Matter
of Karl, 10 I. & N. Dec. 480 (1964), where the alien reentered
illegally after a 10-day trip to Mexico, and Matter of Guimaraes, 10
I. & N. Dec. 529 (1964), where a month's trip to Portugal on a
family visit was involved.
On the other hand, the Seventh Circuit has held that a return
from a "harmless, innocent" vacation trip to Canada for five or six
days was not an entry within the meaning of the statute. Zimmer-
man v. Lehmann, 339 F.2d 943 (CA. 7, 1965), cert. denied, 381 U.S.
925. Similarly, in Yanez-Jacquez v. INS, 440 F.2d 701 (C.A. 5, 1971),
the Fifth Circuit has held that a return from Mexico after a trip of
less than one day was not an entry even though the trip itself had
been for an illegal purpose and was not "innocent."* The Board
took a similar position with respect to a one-week trip to Mexico
for a family visit and religious pilgrimage. Matter of Quintanilla-
Quintanilla, 11 I. & N. Dec. 432 (1965).
Apparently the only judicial decision where a trip outside this
hemisphere of more than a week's duration was found not to
involve an entry is Itzcovitz -v. Selective Service Board, 447 F.2d
888 (C.A. 2, 1971). The case arose from a long history of dispute
between the alien and both the Selective Service System and the
Immigration and Naturalization Service. The alien sought. a decla-
ratory judgment that a contemplated three-week trip to Israel, to
undertake a training course required by his employer, would not
involve an entry within the meaning of section 101(a)(13) upon his
return to the 'United States. The . Second Circuit found that the
alien would come within the Fleuti exception. While noting that
the duration of the proposed trip—three weeks—would be longer
than any previously held not to involve entry, the Court observed
that it would still be of short duration. It stressed that the purpose
of the trip would be to fulfill an employer's requirement for
training and would not reflect merely personal reasons. Further,
and perhaps most important, the Court emphasized that the alien
was "not in the posture of having taken the trip in disregard of the
immigration consequences; rather he * * * sought relief in ad-
vance" by bringing the declaratory judgment action. 447 F.2d at
894. Taking these factors into account, without reference to the
necessity of obtaining travel documents mentioned in Fleuti, the
Court found on the particular facts that the trip would come
within the intent exception in section 101(aX13).
*See also Vargag-Banitelor v_ INS, 4RR F.2d 127 (C.A. 5, 1972); but see Snag-
Davila v. INS, 456 F.2d 424 (CA. 5, 1972).
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Interim Decision #2170
In arriving at the decision now before me, the Board applied a
number of the relevant factors that were pointed out in Fleuti and
the later precedents. It characterized the duration of the trips as
"relatively short" and "a reasonable minimum time in which to
travel to Iran for a visit with his parents." It emphasized that the
alien owns property, has a home, a permanent job, and a wife and
child who are United State' citizens. It explained that the purpose
of the trips was to visit family and while it noted that travel
documents were necessary for the trip, it attached little signifi-
cance to these circumstances. Assessing all these factors, it de-
cided that there was no entry because the alien did not intend to
"interrupt or abandon" his permanent resident status.
I cannot agree with the Board. First, the important factor of
time weighs heavily against the respondent. In Fleuti, the dura-
tion of the absence from the United States was a few hours spent
on the other side of an easily-crossed border. In every "no-entry"
case since, except Itzcovitz, it was a period of time substantially
shorter than the 30 and 35 days involved in respondent's trips. In
finding no intent to "meaningfully interrupt" in Itzcovitz, however,
the court emphasized that the alien was before it to obtain prior
judicial construction of the entry provision as applied to him, thus
affirmatively demonstrating that he had no intention to disrupt or
interrupt his residence here. There is no such affirmative action
on respondent's part.
The second factor mentioned in Fleuti is the purpose of the trip.
Except for Itzeovitz, the cases since Fleuti have laid little empha-
sis on this factor. In Itzcovitz, however, the court found it signifi-
cant that the three-week trip was an employer's training require-
ment, not a personal choice of the alien. Here only the element of
choice was present.
Finally, the Fleuti court, noting the ease with which travel
across the Canadian and Mexican borders can be accomplished,
pointed to the necessity of travel documents as a factor in judging
whether there has been an intent to depart in a manner which can
be regarded as a meaningful interruption of permanent residence.
Having to obtain such documents, the Court reasoned, demon-
strates a much more conscious intent to depart the United States
than a relatively simple trip over a contiguous border. Here
respondent took steps to renew his Iranian passport prior to one
trip and his wife had to obtain a United States passport and an
Iranian visa. These actions involve far more than a casual "step-
ping across an international border."
It is not disputed that the respondent had a home, a job and
property in this country or that he had no intention of abandoning
his permanent resident status. The issue, however, is whether he
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Interim Decision #2170
had an intent to depart within the meaning of the statute as
interpreted by Fleuti. It seems to me that an alien who, on more
than one occasion, procures the necessary travel documents for
himself and his family and travels thousands of miles for a stay of
a month or more has made a conscious and intended departure in
a manner which is meaningfully interruptive of the alien's perma-
nent residence in the United States.
Realizing that any order of deportation may have serious
consequences for the alien involved, I am nevertheless obliged to
conclude that the reentry of this respondent into the United
States after his trips to Iran was an "entry" within the meaning of
section 101(a)(13). Any other result would leave little basis for
principled decision as to when a resident alien has entered the
country within the meaning of that provision and when he has
not.
For the foregoing reasons, the order of the Board is vacated and
the case is remanded to the Board for further proceedings consist-
ent herewith.
225