Jose Angel Lujan - Page 10




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         An individual is treated as present in the United States on any day            
         that the individual is physically present in the United States at              
         any time during the day.  See sec. 7701(b)(7)(A).  As such, the day            
         of entry into the United States and the day of departure from the              
         United States are both counted.                                                
              The parties disagree as to the number of days petitioner was              
         present in the United States during 1993 and 1994.  Although                   
         petitioner does not dispute the entry dates in the Immigration and             
         Naturalization Service records, he disagrees with several departure            
         dates that respondent utilizes.  We believe the departure dates                
         utilized by respondent are accurate.                                           
              Petitioner contends that he was not physically present in the             
         United States for 183 days in either 1993 or 1994.  Petitioner                 
         maintains that at most, he was present in the United States for 171            
         days in 1993 and 164 days in 1994.  Respondent, on the other hand,             
         maintains that petitioner was in the United States for 193 days in             
         1993 and 185 days in 1994.2  The record supports respondent’s                  




              1(...continued)                                                           
                         Current year         =    1                                    
                         1st preceding year =      1/3                                  
                         2nd preceding year =      1/6                                  
               2    During opening statement at trial, respondent’s counsel             
          referred to petitioner being present in the United States for 158             
          days in 1994, whereas on brief, respondent refers to petitioner               
          being present in the United States for 185 days in 1994.  The                 
          record supports a finding that petitioner was present in the                  
          United States for 185 days in 1994, see supra p. 7.                           




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