GRAHAM

11 I. & N. Dec. 234

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1483
• Status: Published

Opinion

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 Na- tionality 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, notwith- standing 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 sec- tion 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 di- recting 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 nonimmi- grant 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 allega- tions 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 sub- ject 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 re- questing 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 hard- ship 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 Septem- ber 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, in- terrupt 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 signi- fieant 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 sus- pension 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 immedi- ately 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 con- tinuity of physical presence, and make the alien ineligible for suspen- sion 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, "con- tinuous - 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 in- terpreted 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 dur- ing 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 Mc- Leod case the court held that because Government agents had im- properly induced McLeod, an applicant for suspension of deporta- tion, 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. 237 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 ab- sence 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 resi- dence." . • 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.