Interim. Decision 41483
Ma= or Gpaiszet
In Deportation Proceedings
A-10198828 . •
Decided by Board June 25, .1965
Respondent, who was absent from the United States for 2 months dnHng the
reqUired period of continuous physical presence, is statutorily ineligible for
suspension of deportation under _section 244(a) (1), Immigration and Nationality Act, as amended, since any absence from the United States, no
. matter how brief, during the statutory period for which continuous phystcal
Presence Is required breaks the continuity of physical presence, notwithstanding Waimea v. Immigration and Naturalization Service, 329 P.2d 812.
[Reaffirmed: Matter of P--, 5 L & N. Dec. 220; Matter of Z—A—N—, 5 L &
N. Dec. 298; Matter of Wong, Int. Dec. No. 1334; Matter of Jacobson, Int.
Dec. No. -1418; Matter of Wong, Int. Dec. No. 1444.•
Oman: '
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)]—Remained
longer—nonimmigrant student.
This case comes forward on appeal from an order entered by the
special inquiry officer on April 6, 1965 denying the respondent's
application requesting that her deportation be suspended under section 244(a) (1) of the Imniigration and Nationality Act, as amended,
but granting her permission to depart voluntarily from the United
States, in lieu of deportation, and directing that if she fails to depart
Voluntarily from the United States, in lieu of deportation, and directing that if she fails to depart ivhen and as required that she
be deported from the United States to Jamaica on the charge set
forth in the order to show cause. The respondent, a 83-year-old
single female, native and citizen of Jamaica, has resided continuously
in the United States since last entering at New York, New York on or
about October 8, 1900 at which time she was admitted as a nonimmigrant student, authorized to remain in the United States in such status
•NOTE: Int. Dee. No. 1444 overruled by 35£1F.2d 151.
234:
Interim Decision 41488
until September 15, 1968. She has remained. in the United States
without authority since the latter date. Deportation proceedings were
instituted against the respondent on March 12, 1965. , Hearings in
deportation proceedings were held at New York, New York on March
23 and April 6, 1965, respectively.
The respondent and counsel admitted the truth of the factual allegations set forth in the order to show cause and conceded deportability
on the charge stated therein at the hearing held on March 28, 1965.
The evidence of record clearly establishes that the respondent is subject to deportation under section 241(a) (2) of the Immigration and
Nationality Act, in that, after admission as a nonimmigrant under
section 101(a) (15) of the Act, she remained in the United States
for a longer time than permitted. The respondent's application requesting that her deportation be suspended. under section 244(a) (1)
of the Immigration and Nationality Act, as amended, was subscribed,
sworn to and submitted for consideration at the deportation hearing
held at New. York, New York on, April 6, 1965. Counsel on appeal
argued that the respondent's absence from the United States for a
period of two months during her summer vacation did not break
the continuity of her physical presence therein. Counsel asserted
that the respondent has been physically present in the United States
for seven consecutive years and is a person of good moral character
whose deportation would result in exceptional and extreme hardship to herself and to her illegitimate United States citizen child.
On examination of the record we find the respondent was initially
admitted to the United States as a nonimmigrant student in September 1955; that she resided continuously in the United States from
September 1955 until she departed 'therefrom for a two months'
vacation 'from:August to October" 1960 in her native country. The
only issue for our determination is whether the respondent has the
necessary Continuous physical presence in the United States to meet
the requirements of the statute: It is conceded that the only manner
in which the respondent's immigrant status can be adjusted is by
having her deportation suspended under section 244(a) (1) of the
Immigration and Nationality Act. Counsel's argument to the effect
that the doctrine enunciated in Rosenberg v. - Flout; 874 U.S. 449, is
applicatle to the respondent is without merit since the respondent
has never been lawfully admitted to the United States for permanent
residence.
This board has consistently held that even a brief absence from
the United States destroys the continuous physical presence required
for eligibility for suspension of deporiatibn (Matter of P—, 51. & N.
Dec. 220; Witter of 2—A—N—, 5 L & N. Dec. 298; of. Matter of
235
Inteiim Decision #1483
TY—, Int. Dec. No. 1334, decided 'April 22, 1964; cf. Matter of TV—,
Int. Dec. No. 1444, decided by thi's 'Board April 2, 1965; cf. Matter
of 1--, Mt. Dec. No. 1413, BIA, December 4, 1964). This Board
is cognizant of the recent decision in the TTnited.Statt% Court of
Appeals for the Ninth Circuit in liradman v. Immigration and
Naturalization Service, 829 F.2d 812,, wherein the court .held that
an alien's five-day visit to Mexico did not, as a matter of law, interrupt the continuity of his stay in the United States so as to
disentitle him to discretionary relief against deportation. In our
opinion the administrative decisions cited above should be adhered
to.
Section 244(a) supra, when enacted on June 27, 1952, made signifieant and substantial revisions in the then existing provisions of
section 19(c) of the Immigration Act of 1917, as amended, relating
to suspension of deportation. One of the elements relating to suspension of deportation under the Act of 1917 (section 19(c) (2) (b))
required a showing by the alien that he had resided continuously in
the United States for seven years or more and was residing therein
on the effective date of the Act (July 1, 1948; 62 Stat. 1206). The
Immigration and Nationality Act of 1952 broadened the class of
aliens who may apply for suspension of deportation, but was more
restrictive in its requirements, in that, the alien, among other things,
must establish that he had been continuously physically present in
the United States for a period of not less than seven years immediately preceding the date of such application …. One of the
questions involved in Taman v. Immigiation and Naturalization
Service, supra, is -nhether the alien's visit to Mexico interrupted his
continuous physical' presence in the United States. Section 101(a)
($3) of the Act defines thEi term."residence" as meaning the place
of general abode; the place of general abode of a person means his
principal, actual dwelling place in fact without regard to intent.
Residence shall be considered continuous for the purposes of sections
350 and 352. of Title III of the Act where there is continuity of
stay but not necessarily an uninterrupted physical presence in a
,foreign state or states _outside the United States.
Section 244(a) (1) of the Immigration and Nationality Act, as
amended by .the Act of October 24, 1962 provides that the Attorney
GeneraL.may, in his discretion, suspend deportation and adjust the
status to that of an alien lawfully .admitted for permanent residence,
in the case of an alien who applies to the Attorney General . for
suspension of •deportation and
(1) isIdeportabin und.eriany law Of the United States except.the provisions
specified in paragraph (2) or this subsection; bils been physically pres-
236
Interim Decision #1483
ent in the rnited States for a continuum: period of not less than seven
years immediately preceding the date of such application, • …
To give effect to the changed language in section 244(a) (1) of the
Immigration and Nationality Act it would appear necessary to give
the language its plain meaning and hold ,that any absence from the
United States during the period for which continuous physical
presence is required, no matter how brief, would destroy the continuity of physical presence, and make the alien ineligible for suspension of deportation. A cardinal rule of statutory construction is that
when Congress amends a law, the amendment is made to effect some
purpose and change in the law (Mogts v. Lyman Rickey, 189 F.2d
130, cert. den.
342 U.S. 887). If the Congress in enacting section
244(a) of the Immigration and Nationality Act, as amended in
October 1962, intended to permit physical absence from the United
States it could have required only that an alien have seven years'
continuous residence and not seven .years' continuous physical
presence.
The language of the statute is clear and unambiguous. Congress,
unquestionably, recognized the difference between the term, "continuous - residence" in the Immigration Act of 1917, as amended, and
the term "continuous physical presence" in the Immigration and
Nationality Act of 1052, as amended. The continuous physical
presence - requirement for suspension of deportation has been interpreted by several of the United States courts. The court in
McLeod v. Peterson,
283 F.2d 180, held that an alien's absence from
the United States while in Canada for approximately one year during the seven-year period required for continuous physical presence
did not break the continuity of his physical presence in the United
States.
McLeod, supra, -Is readily distinguishable from the facts in
Wadman.v. Immigration and Naturalization Service. In the McLeod case the court held that because Government agents had improperly induced McLeod, an applicant for suspension of deportation, to leave the United States the Government was prevented or
estopped in claiming that his absence in Canada broke his continuous
physical presence for suspension of- deportation. In U. S. ex rel.
Bruno v. Sweet,
133 F. Supp. 3, one of the questions presented was
whether the alien had been continuously physically present in the
United States for ten years to qualify for suspension of deportation
under section 244(a) (5) of the Immigration and Nationality Act.
In the latter case, the alien had gone to Canada in January 1948 for
the purpose of obtaining an immigrant visa. He was deported from
Canada to the United States by Canadian officials on the same date.
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Interim Decision 4E1483
The court held his departure from the United States to Canada for
a period of less than one day broke his period of continuous
physical presence in the United States (cf. At renow-Flores v. Hoy,
262 1".2d. 667).
The Congress of the United States in amending section 244(a) of
the Immigration and Nationality Act on October 24, 1962 (Public
Law 87-885) had an opportunity to change the terminology of the
statute to require continuous residence in the United States instead
of continuous physical presence. Congress failed to make any such
change in the continuous physical presence requirements of section
-244(a) (1) and (2) of the Immigration and Nationality Act, as
amended, except for aliens who served. a minimum period of 24
months in an active duty status in the armed forces of the United
States (section St i(b) of the Act). For the reasons set forth, we
-
affirm our prior administrative decisions to the effect that any absence during the period reqiiired by statute, no matter how brief,
• destroys the continuous physical presence required for eligibility for
suspension of deportation. Clearly, the term "continuous physical
presence" can in nowise be equated with the term "continuous residence." .
• After carefully considering all the evidence of record, together
' with counsel's representations on appeal, we End nothing therein
that warrants any change being made in the decision of the special
inquiry officer who has denied the alien's application for suspension
of deportation but granted her permission to depart voluntarily
from the United States, in lieu of deportation, which is the maximum
discretionary relief available to her. Accordingly, the folio-wing
order will be entered.
ORDER: It is ordered that the appeal be dismissed.
