FLORES-GONZALEZ

                                                   Interim Decision #1551




                        Magma or FLORES-GONZALBZ

                              . A-6819970

                 ,      In. Deportation Proceedings
                     Decided by Board January 20, 196V
  Since the Department of the Army has not taken any steps to revoke ab initio
    the honorable discharge issued respondent, an applicant for suspension of
    deportation who has served a minimum of 24 months in an .ftetiva duty-


    status in the Armed Forces of the United States" following which he was
    separated "under honorable conditions," he comes within the purview of
   • section 244(b), Immigration and Nationality Act; as amended, notwith-
    standing gnat under Army regulations be may be dropped from the rolls Of
    the army as a result of his conviction which forms the basis .fOr his
    deportation.        •         •       •
 CHARGE:   • - •
' Order: Act of 1952—Seetion 241(a) (11) 18 U.S.C. 1251(a) (11))--Convic-
                           tion for possession of marihuana.


   The respondent, a native and citizen of Mexico- appeals from an
order entered by the special inquiry officer on October 4,- 1965
directing his deportation 'to. Mexico on the charge that he has been
convicted of a law relating to the illicit possession-of marihuana in
violation of Article 725(b) of the Texas Penal Code. Deportability
on the stated charge is conceded. The appeal is directed to the
denial Of the respondent's application for suspension Of deportation
filed pursuant to section 24t(b) of the Immigration incl. Nationality
Act.
   The respondent, an unmarried male alien, -28 years of age was
admitted to the United States as an immigrant at the port of El
Paso, Texas on November 29, 1947. He'as convicted on - February
18; 1968 in Bexar County, Texas for the offense of "possession of
Marihuana in violation of Article 725(b) of the Texas Penal, Code.
The respondent concedes that he is deportable as charged in the
order to show cause.
   The respondent has applied for suspension of deportation pur-
suant to section 244(a) (9) of the -Immigration and Nationality

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  Interim Decigion 41551            '
  Act. Section 244(a) (2) provides, inter 924 that an alien who is
  deportable as a narcotic offender must establish that he has been
  physically present in the United States for a "continuous period"
  of not less than 10 years immediately following the commission of
  the Act constituting the grcitmd, for deportation and during this
  period he must establish that he has been a person of good moral
  character. Since the Siidance establishes that the respondent was -
- charged with possession of marihuana, on October 28,,1962, he can-
 not qualify for suspension of deportation under section 244(a) (2)
; of the Immigration and Nationality Act Unless by reason of his
 "active-duty status in the Armed Forces of the United States" he '
 comes within the exemption from the "continuous physical presence"
   requirement provided by section 244(b) of the Immigration and
  Nationality Act? The record establishes that .the respondent was
  inducted into the armed- services at San Antonio, Texas on April
 -26, 1960; -
     The special inquiry officer finds that the respondent served in an.
  "active-duty status in. the Armed Forces, of the United States" for
  a -period of sufficient duration' to qualify - under section 244(b) of
  the Immigration and Nationality Act. The special inquiry officer
  concludes however that since the respondent was dropped from:the
  rolls of the Army on January 19, 1965 by reason of his conviction
  for possession of marihuana he is statutorily ineligible for relief
  under section 244(a) (2) because he was not separated from the
  Armed' Services under honorable conditions. The Service has filed
  a brief supporting the szecial inquiry officer's conclusion and orally
  argued the case before this Board. _ The special inquiry officer and
' the Service reason that there is a continuing - responsibility on the
  part of the respondent to comply -with the discharge provisions of
  section 244(b) notwithstanding the fact that he (respondent) served
  the required two years of "active-duty status" in the Armed Forces
  and was discharged "under honorable conditions" prior to the time
   'Section 244(b) of the Immigration and - Rationality Act reads as follows:
   (b) The requirement of continuous physical presence in UM United States
specified in paragraphs (1) and (2) of subsection (a) of this section shall not
be applicable to an alien who (A) has served for a minimum period of twenty-
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 condi-
tions, and (B) at the time of his enlistment or induction was in the United
States.
  'The evidence establishes that the respondent wad inducted into the Armed
Services on April 26, 1960 and discharged "under honorable conditions" on
May 15, 1962 when he was transferred to the Army Reserves.

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 that he committed•the act which serves as the -basis for.his deporta-
tion.       .
    Counsel foi the respondent-urges rarrbr lunthe Conclusion..of the.
 special inquiry officer because (1) the•ecord 'id completely devoid of
 any evidence showing that the tespondent•was- notgeeparated-under
 honorable conditions and (2) there is no 'evidence of record that-
 respondeit was 'dropped from the rolls' of thi3 1Atiny" itecerfi-
 ance with the procedure set forth in piregratih 10 fof gfmy Ipegula-
tions 185478.3
    We find nothing in the .statate ;or 'tile'Preckents“tited b? the
 special inquiry officer ine,the Tkial                       rig:Aix:es' a
 finding . .of inelig,ibility' under' t4e         /0114; 1s -(A .segti*
244(b): after the :alien has billy serVed...the xequired...two Tian 'Of
"active-duty status in the Armed Forces     f United'
                                              o            States"; •
has been. discharged from the Armed Imes, "under honorable con-
 ditions"' and ,then after a lapse oC some two and one half years is
dropped •frem•the rollsiof the Army .Reserves by reason: of a con-
viction of a narcotic charge xxonmittostafter the completion of the
required two years of active-duty :status;' Section.244(b). provides
in substance that the.requirement of 10 years of .physical presence
 after the commission of a proscribed 'act. which render§ an alien
-deportable is waived in the case of an applicant for suspension .of
 deportation Who "lies served for a minimum peried'uf.24 Months
 in an active-duty. states in the Armed' Forces of the United' States
.and if separated from- such service' the discharge'was           honor-
-able conditions." .(EmpliFi's "added.) ' The resp'ondentimeets these
 requirements. The term "if separated- front- such amide' refers
 to the completion "of "94 months of action duty status in gm Armed
                                               -


.Forces of the United States" following which. there Wad a -Sepal:a-
 fion "under honorable conditions." (Emphasis added.)
    Our decision in this regard is not contrary to the conclusion
reached        Matter of Peralta, Int. Dec. No. 1290, BIA, gk.ne.19,
1968. the definitions- of the terms "active duty" and ;
  ''Paragiqh 10 of Array Regulations 135-178, provides:      -
   10. Dropping from the rolls A. reservist sentenced to confinement in a
Federal or State penitentiary or correctional instittitIon after having been
found guilty of an offense by a civil court and who* sentence has become
Anal, whether or not actually confined, may be dropped from the rolls of the
army. This act will be accomplished in special or letter orders.
   Waited States 47. Rosner, 

249 F.2d 49

 (C.A. 2, 1957); (Xenia v. Brooker,
173 F. Stipp. 493; Natter of Perolta, Int. Dee. No. 1290; Matter of Woo, Int.
Mee. No. 1297.

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 Interim Decision #1551
"active service" 5 set forth in 10 United States Code 101 (22 & 24)
we -held that "annual training duty" while a member of the Reserves
could be credited in completing the 24-month period of "active-duty
status" in the Armed Forces. There was no dispute with regiird to
the issue of whether there . was an honorable discharge in the
Peralta case (supra).
  Pursuant to 10 United States Code 101 (29)° the phrase "may
be dropped from the rolls of the army" found in Paragraph 10 of
Army Regulations 135-178 must be used in a permissive sense and
there is nothing in this record to show that the Department of the
Army has taken. any steps to revoke ab ihitio the honorable discharge
issued to the respondent on May 16, 1062. Accordingly, we find the•
respondent statutorily eligible for suspension of deportation under
the provisions of section 244(a) (2) of the Immigration and National-
ity Act.
   The respondent on or about June 25, 1964 was convicted of an
aggravated assault on a female and sentenced to 90 days in jail.
His probation for the narcotic charge was revoked on September 24,
1964 and at the time of _the hearing in June of 1965 he was serving
a two-year sentence at the Texas Department of Correction Facility
at Sugarland, Texas. -The respondent must establish good ; moral
character
..         from the date of the filing of his application for suspen-
awn. of deportation up to and including the 'final adjudication of
the said application. Matter of Peralta, Int. Dec. No 1290, BIA.,
June 19, 1963. We will remand the case to the special inquiry
officer for a reappraisal and revaluation of the evidence concerned
with the respondent's application for suspension of deportation and
a decision as to whether suspension of deportation is warranted as a
matter of discretion. An appropriate order will be entered.
   ORDER; It is directed that the case be remanded to the special
inquiry officer for further decision in accordafice with the foregoing
opinion.
  5 Section 101 Definitions . . . the following definitions apply in this title:
   (22) "Active 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 training duty, and attendance, while in the active military service, at a
school designated as a service school by law or by the Secretary of the mili-
tary department concerned.
   (24) "Active service" means service on active duty.
  • Section 101 Definition. . . . the following definitions apply in this title:
  (29) "May" is used in a permissive sense. The 'Words "no person may
mean that no person is required, authorized, or permitted to do the act pre-
scribed.



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