464 U.S. 183 (1984), 82-91, I.n.s. v. Phinpathya

Docket Nº:No. 82-91.
Citation:464 U.S. 183, 104 S.Ct. 584, 78 L.Ed.2d 401
Party Name:IMMIGRATION AND NATURALIZATION SERVICE, Petitioner v. Padungsri PHINPATHYA.
Case Date:January 10, 1984
Court:United States Supreme Court
 
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Page 183

464 U.S. 183 (1984)

104 S.Ct. 584, 78 L.Ed.2d 401

IMMIGRATION AND NATURALIZATION SERVICE, Petitioner

v.

Padungsri PHINPATHYA.  

No. 82-91.

United States Supreme Court.

Jan. 10, 1984

        Argued Oct. 3, 1983.  

         [104 S.Ct. 586] Syllabus[*]

        SYLLABUS

        Section 244(a)(1) of the Immigration and Nationality Act (Act) authorizes the Attorney General, in his discretion, to suspend deportation of an otherwise deportable alien who "has been physically present in the United States for a continuous period of not less than seven years" and is a person of good moral character whose deportation would result in extreme hardship to the alien or his spouse, parent, or child.  Respondent, a citizen of Thailand, first entered the United States as a nonimmigrant student in October 1969, and was authorized to remain until July 1971.  But when her visa expired she chose to stay without securing permission from the immigration authorities.  In 1977, petitioner Immigration and Naturalization Service commenced deportation proceedings against respondent.  Conceding deportability, respondent applied for suspension pursuant to § 244(a)(1).  Based on respondent's testimony that she had left the United States for Thailand during January 1974 and that she had improperly obtained a nonimmigrant visa from the United States consular officer in Thailand to aid her reentry three months later, an Immigration Judge concluded that respondent had failed to meet § 244(a)(1)'s 7-year "continuous physical presence" requirement and accordingly denied her application for suspension.  The Board of Immigration Appeals (BIA) affirmed, holding that respondent's absence from the United States was meaningfully interruptive of her continuous physical presence in the country, since she was illegally in the United States at the time she left for Thailand and was able to return only by misrepresenting her status.  The Court of Appeals reversed, holding that the BIA had placed too much emphasis on respondent's illegal presence prior to her departure and on the increased risk of deportation that her departure had engendered, and that an absence can be "meaningfully interruptive" only when it increases the risk and reduces the hardship of deportation.

        Held:  Respondent did not meet § 244(a)(1)'s "continuous physical presence" requirement.  Pp. 589 - 593.

        (a) The Court of Appeals' interpretation of this requirement departs from the Act's plain meaning.  Section 244(a)(1)'s language requiring certain threshold criteria to be met before the Attorney General, in his

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discretion, may suspend deportation plainly narrows the class of aliens who may obtain suspension.  The ordinary meaning of such language does not readily admit any exception to the "continuous physical presence" requirement.  When Congress has intended that a "continuous physical presence" requirement be flexibly administered, it has provided authority for doing so.  Moreover, the evolution of the deportation provision itself shows that Congress knew how to distinguish between actual "continuous physical presence" and some irreducible minimum of "nonintermittent" presence.  Pp. 589 - 590.

        (b) Since this case deals with a threshold requirement added to the statute specifically to limit the discretionary availability of the deportation suspension remedy, a flexible approach to statutory construction, such as the Court of Appeals' approach, is not consistent with the congressional purpose underlying the "continuous physical presence" requirement.  Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000, distinguished.  Pp. 591 - 592.

        (c) To interpret § 244(a)(1) as the Court of Appeals did collapses the section's "continuous physical presence" requirement into its "extreme hardship" requirement and reads the former out of the Act.  Section 244(a)(1)' s language and history suggests that the two requirements are separate preconditions for a suspension of deportation.  It is also clear that Congress intended strict threshold criteria to be met [104 S.Ct. 587] before the Attorney General could exercise his discretion to suspend deportation.  To construe the Act so as to broaden such discretion is fundamentally inconsistent with this intent.  Pp. 592 - 593.

        673 F.2d 1013 (9th Cir.1981) reversed.

        COUNSEL

        Elliott Schulder argued the cause for petitioner.  With him on the briefs wereSolicitor General Lee, Assistant Attorney General Jensen, and Deputy Solicitor General Geller.

        Bert D. Greenberg argued the cause for respondent.  With him on the brief wasMartin Simone.*

        * James J. Orlow filed a brief for the American Immigration Lawyers Association as amicus curiae.

        Elliott Schulder, Washington, D.C., for petitioner.

        Bert D. Greenberg, Beverly Hills, Cal., for respondent.

        OPINION

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         Justice O'CONNOR delivered the opinion of the Court.

        In § 244(a)(1) of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 U.S.C. § 1254(a)(1), Congress provided that the Attorney General in his discretion may suspend deportation and adjust the status of an otherwise deportable alien who (1) "has been physically present in the United States for a continuous period of not less than seven years";  (2) "is a person of good moral character";  and (3) is "a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, ...."  In this case we must decide the meaning of § 244(a)(1)'s "continuous physical presence" requirement.

        I

        Respondent, a native and citizen of Thailand, first entered the United States as a nonimmigrant student in October, 1969.  Respondent's husband, also a native and citizen of Thailand, entered the country in August, 1968.  Respondent and her husband were authorized to remain in the United States until July, 1971.  However, when their visas expired, they chose to stay without securing permission from the immigration authorities.

        In January, 1977, petitioner, the Immigration and Naturalization Service (INS),1 commenced deportation proceedings against respondent and her husband pursuant to § 241(a)(2) of the Act.  See 8 U.S.C. § 1251(a)(2).  Respondent and her husband conceded deportability and applied for suspension

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pursuant to § 244(a)(1).  8 U.S.C. § 1254(a)(1).  An immigration judge found that respondent's husband had satisfied § 244(a)(1)'s eligibility requirements and suspended his deportation.  App. to Pet. for Cert. 29a-31a.  But respondent's own testimony showed that she had left the country during January, 1974, and that she had improperly obtained a nonimmigrant visa from the United States consular officer in Thailand to aid her reentry three months later. 2  On the basis of this evidence, the immigration judge concluded that respondent had failed to meet the seven year "continuous physical presence" requirement of the Act:

        "[Respondent's] absence was not brief, innocent, or casual.  The absence would have been longer than three months if she had not obtained the spouse of a student visa as fast as she did obtain it.  It was not casual because she had to obtain a new Tha[i] passport, as well as a nonimmigrant visa from the American Consul, to return to the United States.  It was not innocent because she failed to inform the American Consul that she [104 S.Ct. 588] was the wife of a student who had been out of status for three years (and therefore not entitled to the nonimmigrant visa she received)."   App. to Pet. for Cert. 28a.  

        Accordingly, he denied respondent's application for suspension.  Id., at 28a-29a.

         The Board of Immigration Appeals (BIA) affirmed the immigration judge's decision on the "continuous physical presence"

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 issue. 3  BIA observed that respondent was illegally in the United States at the time she left for Thailand and that she was able to return only by mispresenting her status as the wife of a foreign student.  Id., at 17a-18a.  Based on these observations, BIA concluded that respondent's absence was meaningfully interruptive of her continuous physical presence in the United States.  Ibid.

        The Court of Appeals reversed.  It noted that, although respondent traveled to Thailand for three months, "she intended, at all times, to return to the United States."  Phinpathya v. INS, 673 F.2d 1013, 1017 (CA9 1982).  The Court held that BIA had placed too much emphasis on respondent's illegal presence prior to her departure and on the increased risk of deportation that her departure had engendered.  Id., at 1017-1018.  Finding BIA's approach legally erroneous, it concluded that:

        "an absence cannot be 'meaningfully interruptive' if two factors are present:  (1) the hardships would be as severe if the absence had not occurred, and (2) there would not be an increase in the risk of deportation as a result of the absence."  Id., at 1018, and n. 6 (citing Kamheangpatiyooth v. INS, 597 F.2d 1253, 1257 (CA9 1979)).  

        Since BIA "failed to view the circumstances in their totality and [analyze those circumstances] in light of the underlying Congressional purpose," id., at 1017,4 the Court remanded

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 for further proceedings on the "continuous physical presence" issue. 5

        We granted certiorari, 459 U.S. 965, 103 S.Ct. 291, 74 L.Ed.2d 275, to review the meaning of § 244(a)(1)'s requirement that an otherwise deportable alien have been "physically present in the United States for a continuous period of not less than seven years ...."  8 U.S.C. § 1254(a)(1).  We find that the Court of Appeals' interpretation of this statutory requirement departs from the plain meaning of the Act. 6

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[104 S.Ct. 589] II

         This Court has noted on numerous occasions that "in all cases...

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