MATTER OF PERALTA
A-11402870
Decided by Board
June 19, 1963
Interim Decision #1290
(2) While such an applicant is also exempt from the necessity of establishing good moral character for the periоd coextensive with the physical-presence period, he must establish good moral character between the date he filed his application and the datе it is finally adjudicated. Conduct prior to date of filing can be considered in determining whether good moral character has been established during the period in question.
(3) In computing the 24-month period of active-duty status under section 244(b) of the Act, as amended, annual active training duty as a member of the Re-serves can be credited to activе-duty service but unused accrued leave cannot be so credited.
CHARGE:
Order: Act of 1952—Section 241(a) (9) [
The special inquiry officer granted suspension of deportation and certified his order to the Bоard for final decision. The order will be approved.
The issue concerns the effect of military service in the United States on the necessity of an applicant for suspension of deportation establishing that he has seven years continuous physical presence in the United States.
Respondent, a 25-year-old, single, male alien, a native and citizen of the Philippines, was admitted to the United States as a student on October 5, 1957. He has not attended school since June 14, 1962; he is clearly deportable on the charge in the order to show cause.
On March 11, 1959, the respondent was inducted into the Army of the United States at Oakland, California; he was on active duty until February 28, 1961, when he received an honorable release to the Reserves. He is obligated to serve in the Reserves until March 10, 1965.
Respondent is applying for suspension of deportation under section 244(a) (1) of the Immigration and Nationality Act as amended by Public Law 87-885, October 24, 1962, 87 Stat. 1247 (
(1) is deportable under any law of the United States except the provisions specified in paragraрh (2) of this subsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character;
Respondent, who has not been in the United States for sеven years, believes that the requirement as to length of residence is waived by section 244(b) of the Act which provides:
The requirement of continuous physical presence in the United States specified in paragraphs (1) and (2) of subsection (a) of this section shall not be appli-cable to an alien who (A) has served for a minimum period of twеnty-four months in an active-duty status in the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and (B) at the time оf his enlistment or induction was in the United States.
The exemption from physical presence in the United States can be read in two ways: It can mean that a total presence of seven years in the United States is required but that the presence need not be a con-tinuous one; it can also mean that seven years presence in the United States is not required. We believe that the second premise was intended by Congress and that the necessity for any definite period of presence has been eliminatеd.
Representative Walter who handled the legislation made the follow-ing statement on the floor of the House concerning the section:
The inclusion in the benefits of this legislation of aliens who served honorably for a stated period of time in the Armed Forces of the United States represents the incorporation into a permanеnt statute of a policy traditionally adhered to by the Congress in the enactment of private relief bills for the alien servicemen or ex-servicemen. (108 Cong. Rec. 22153 (daily еd. October 12, 1962.))
Since it was the purpose of Congress to minimize the number of private relief bills for alien servicemen—a purpose which can best be accom-plishеd by taking a broad view of the legislation, and since remedial legislation should be broadly interpreted, we hold that it was the intent of Congress to eliminate any specified period of residence in the United States for a person who has the necessary honorable service in the Armed Forces.
This conclusion brings us to the question whether the resрondent had honorable service “for a minimum period of twenty-four months in an active-duty status.” The military report of the respondent‘s
The definitions of pertinent terms follow:
“Aсtive duty” means full-time duty in the active military service of the United States. It includes duty on the active list, full-time training duty, annual train-ing duty, and attendance, while in the active military service, at a school desig-nated as a service school by law or by the Secretary of the military department concerned (
10 U.S.C. 101 (22) ).“Active service” means service on active duty (
10 U.S.C. 101 (24) ).“Inactive-duty training” means—(A) duty prescribed for Reserves by the Sec-retary concerned under section 206 of title 37 or any other provision of law; and (B) special additional duties authorized for Reserves by an authority designated by the Secretary concerned and performed by them on a voluntary basis in con-nection with the prescribed training or maintenance activities of the units to which they arе assigned.
It includes those duties when performed by Reserves in their status as members of the National Guard (
10 U.S.C. 101(31) ).Leave taken prior to discharge or separation from the serviсe will be considered as active military service but unused accrued leave settled and compensated for under the Armed Forces Leave Act of 1946, as amended, will not be considered as active military service (AR 630-5, Sec. III par. 22 (a)2).
We can thus see that the accrued leave cannot be credited as active-duty servicе but that it is proper to utilize the annual training duty. Respondent therefore has the required period of military service of the requisite character.
Our conclusion that Congrеss eliminated any specified period of physical presence for the qualified serviceman requires consideration of the question whether the exemption also eliminated the necessity for establishing good moral character for a specified period. In a somewhat similar situation regarding naturalization benefits awardеd to servicemen, the court held that elimination of the specified period of residence which had been referred to in the general requirement that good morаl character be established for a fixed period, eliminated for the serviceman, the obligation of establishing good moral character except for the рeriod from the time of filing the application for benefits to the time of final adjudication. (Conduct prior to the date of the filing could be considered as bearing upon the question of whether good moral character within the requisite period had been
ORDER: It is ordered that no change be made in the order of the special inquiry officer.