COPELAND

Interim Decision #3084




                          MATTER OF COPELAND

                        In Section 316(b) Proceedings

                                   A-23442760

              Decided by Commissioner September 29, 1988

(1) Section 815(b)(3) of the Immigration Reform and Control Act of 1986, 

 Stat. 3359, 3439-40, is inapplicable in matters regarding an Application to Preserve Residence for Naturalization Purposes (Form N-470) pursuant to
  section 316(b) of the Immigration and Nationality Act, 

 (1982).
(2) Any departure of an alien from the United States precludes establishment of an
  uninterrupted period of 1 year after lawful arimiceion for permanent residence
  and therefore bars eligibility for preservation of residence pursuant to section
  316(b) of the Act. Matter of Graves, 

 (Comm. 1985), followed.
ON BEHALF OF APPLICANT: Laurie Grossman, Esquire
                        Wildes & Weinberg, Esquires
                        515 Madison Avenue
                        New York, New York 10022

  The Application to Preserve Residence for Naturalization Purposes (Form N-470) was denied by the district director, Hartford,
Connecticut, and is now before the Commissioner on appeal. The
appeal will bet dismissed.
   The district director determined that the applicant was not physically present and residing in the United States for an uninterrupted period of at least 1 year after lawful admission to the United
States for permanent residence and denied the application, following Matter of Graves, 

 (Comm. 1985).
   On appeal, counsel for the applicant argues that Matter of
Graves, supra, is not the controlling precedent since the rationale
of that decision was specifically reversed by section 315(b)(3) of the
Immigration Reform and Control Act of 1986, 

 Stat. 3359, 3439-40 ("IRCA"). Counsel argues that the IRCA
creates a statutory mandate that continuous physical presence be
liberally construed. Counsel asserts that it is unlikely Congress intended that a more stringent standard be applied to a lawful permanent resident than to an alien unlawfully in the United States
seeking relief from deportation. Counsel therefore argues that
under the new statutory interpretation of physical presence, the
                                        788
                                                   Interim Decision # 3084

applicant meets the requirement of 1-year's uninterrupted physical
presence.
  The applicant is a 44-year-old native and citizen of the United
Kingdom who was admitted to the United States as a lawful permanent resident on July 14, 1980. The applicant was temporarily
absent from the United States from April 16, 1981, to April 26,
1981, and from August 8, 1981, to August 31, 1981. In addition, the
applicant was absent for 27 days in 1982 and 45 days in 1983 and
was subsequently assigned to work in Korea and departed in 1984.
  Matter of Graves, supra, holds that it is impossible to construe
the uninterrupted physical presence requirement of section 316(b)
of the Act to allow departures from the United States. The effect of
Rosenberg v. Yleuti, 

 (1963), cannot be extended to statutory schemes which include a requirement of uninterrupted or
continuous physical presence. Any departure from the United
States for any reason or period of time bars a determination that
an alien has been continuously physically present in the United
States or present in the United States for an uninterrupted period
during the period including the departure. An applicant's failure to
establish that he or she has been present in the United States for 1
year after lawful admission for permanent residence bars eligibility
for preservation under section 316(b) of the Act.
  Section 315(b)(3) the Immigration Reform and Control Act of
1986, under the heading "Suspension of Deportation for Certain
Aliens," amends section 244(b) of the Immigration and Nationality
Act, 

(b) (1982), by providing:
 An alien shall not be considered to have failed to maintain continuous physical
 presence in the United States . . . if the absence from the United States was
 brief, casual, and innocent and did not meaningfully interrupt the continuous
 physical presence.
   Section 315(b)(3) of IRCA clearly and explicitly refers to suspension of deportation. There is neither reference nor evidence of an
intent to imply preservation of residence. Since IRCA was an attempt to reform existing immigration laws, it is reasonable to infer
that Congress would have addressed this question specifically had
it desired to do so. Attempts to derive the intent of Congress are
speculation.
   In INS v. Phinpathya, 

 (1984), the Supreme Court
construed the term "continuous physical presence" as that term is
used in the suspension of deportation provision, section 244 of the
Act, 

 (1982). There, the Court literally applied that
term, holding that the ordinary meaning of the words "for a continuous period of not less than seven years immediately preceding
the date of such application" did not readily admit any exception
Interim Decision #3084

to the requirement of 7 years' continuous physical presence in the
United States to be eligible for suspension of deportation. The
Court stated that the plain meaning of section 244 must be applied,
however severe the consequences.
  The Court also pointed to the fact that Congress had, in the past,
provided authority for the "continuous physical presence" requirement to be flexibly administered_ For example, former section 301
of the Act required 2 years of "continuous physical presence" for
maintenance of status as a United States citizen or national but
provided that absences of less than 60 days would not break the
continuity. However, in the case of section 244, Congress had made
no such accommodation, just as it has not in the context of section
316(b) of the Act, at issue here.
  Therefore, in light of the Supreme Court's strict literal interpretation of 

 the Service is bound to follow the
plain language of section 316(b) of the Act, despite the amendment
of section 244 by MCA.
  Matter of Graves, supra, remains the governing precedent. The
applicant has not been continuously present in the United States
for 1 year after admission for permanent resident status. Accordingly, the appeal will be dismissed.
  ORDER: The appeal is dismissed.