597 F.2d 1253 (9th Cir. 1979), 77-3767, Kamheangpatiyooth v. Immigration and Naturalization Service

Docket Nº:77-3767.
Citation:597 F.2d 1253
Case Date:May 30, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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597 F.2d 1253 (9th Cir. 1979)




No. 77-3767.

United States Court of Appeals, Ninth Circuit

May 30, 1979

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John A. Joannes, Los Angeles, Cal., for petitioner.

Brian H. Simpson, I & NS, San Francisco, Cal., for respondent.

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On Petition to Review a Decision of the United States Immigration and Naturalization Service.

Before BROWNING and ANDERSON, Circuit Judges, and WATERS, [*] District Judge.

BROWNING, Circuit Judge:

Petitioner is a native and citizen of Thailand who entered this country in 1964. He was authorized to remain until January 23, 1976. When he did not depart, the Immigration and Naturalization Service initiated deportation proceedings. Petitioner admitted deportability but applied for suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1). 1 The Immigration judge found petitioner ineligible for the relief sought because he had left the United States for a month in 1970, five years and 10 months before his application, and therefore had not been continuously present in the United States for the required seven-year period. The Board of Immigration Appeals affirmed. This petition followed. We conclude that the Immigration judge and the Board based their determinations upon an erroneous legal standard. We therefore vacate the Board's order and remand for further proceedings.

The facts are these. Petitioner was admitted to the United States as a student in January 1964 at the age of 20. By the winter of 1970 he had completed half of a four-year course of architectural studies at California Polytechnic Institute. On the advice of his brothers and sisters he decided to return to Thailand during the Christmas semester "break" to visit his mother, who was gravely ill. 2 He left the United States for Thailand on December 10, 1970, visited his mother, and returned on January 10, 1971, in time to resume second-semester classes. Before leaving on his trip petitioner obtained from California Polytechnic an Immigration Form I-20A, attesting to acceptance at an American educational institution. While in Bangkok he used this form to obtain a new student visa. In December 1973 petitioner graduated from California Polytechnic with a bachelor's degree in architecture. He has since been employed by an architectural firm in Fresno, California. His 30-day trip to visit his mother in 1970 was his only absence from the United States during the 12-year period from his initial entry in January 1964 until his application for suspension of deportation on November 8, 1976.

The Immigration judge held that this 30-day absence rendered petitioner ineligible for suspension of deportation. The Board of Immigration Appeals dismissed petitioner's appeal, stating simply, "(t)he decision of the immigration judge was correct," citing Munoz-Casarez v. INS, 511 F.2d 947 (9th Cir. 1975), and Matter of Janati-Ataie, 14 I & N 216, 221 (Atty.Gen.1972).

Section 244(a)(1) permits the Attorney General to consider the merits of an application for suspension of deportation only if the applicant "has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application." See note 1. The Immigration judge correctly

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noted that the principles applied by the Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), in deciding whether an entry was intentional within the meaning of section 101(a)(13) of the Act should also guide the determination of whether an intervening absence interrupts the continuity of physical presence for purposes of section 244(a)(1). We have so held. Wadman v. INS, 329 F.2d 812, 815 (9th Cir. 1964); Git Foo Wong v. INS, 358 F.2d 151, 153 (9th Cir. 1966). See also Heitland v. INS, 551 F.2d 495, 501 (2d Cir. 1977). Those principles mandate that neither section be read literally: "the term 'continuous' (in section 244(a)(1)) is no more subject to a hard and fast construction than is the term 'intended' " in section 101(a)(13). Wadman v. INS, supra, 329 F.2d at 816. Both sections therefore must be interpreted in light of the congressional purpose. Both sections are remedial, and hence are to be generously construed. More specifically, both sections are intended to relieve aliens of the harsh results, and of the unsuspected risks and unintended consequences, that would flow from a literal and rigid application of the provisions of the Act relating to expulsion and exclusion. Rosenberg v. Fleuti, supra, 374 U.S. at 457-58, 462, 83 S.Ct. 1804 (§ 101(a)(13)); Heitland v. INS, supra, 551 F.2d at 501, 502 (§ 244(a)(1)); 2 Gordon & Rosenfield, Immigration Law and Procedure §§ 7.1a, 7.1b(3), 7.9a. 3

From this perspective, the function of the section 244(a)(1) requirement that an applicant for suspension of deportation be physically present in this country for a continuous period of seven years becomes clear. It was Congress's judgment that presence of that length was likely to give rise to a sufficient commitment to this society through establishment of roots and development of plans and expectations for the future to justify an examination by the Attorney General of the circumstances of the particular case to determine whether deportation would be unduly harsh. 4 Continuity in the prescribed period of physical presence was required because continuity is important to the legitimacy of the inference that extended presence is likely to make deportation harsh. Presence that is only intermittent suggests the alien has not become so attached to this country that the authorities should consider suspending normal operation of the immigration laws on his behalf. As the Second Circuit has noted,

deportation of an alien who ha(s) accumulated seven years of fragmented residence in the United States, interrupted by frequent or long absences abroad, would not be expected to work as much hardship upon him as might result if he

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had resided in this country for an unbroken seven-year period, since the latter might reduce the likelihood of his being able to establish his home elsewhere. The statute surely was not designed to protect the wanderers or the rootless. Hence Congress used the word "continuous."

Heitland v. INS, supra, 551 F.2d at 501. Conversely, interruptions that are brief and infrequent do not diminish the probability that deportation would occasion undue hardship. An alien who leaves the country briefly and for innocent reasons during the requisite seven years may be in no different position, realistically viewed, than an alien who has remained within the borders for an identical period.

To effectuate the purposes underlying the continuous period requirement, and to realize Congress's desire (identified in Fleuti) to avoid exposing aliens to unexpected risks and unintended consequences, the Board must determine whether a particular absence during the seven-year period reduced the significance of the whole period as reflective of the hardship and unexpectedness of expulsion. An absence cannot be significant or meaningfully interruptive of the whole period if indications are that the hardship of deportation to the alien would be equally severe had the absence not occurred, and that no significant increase in the likelihood of deportation could reasonably have been expected to flow from the manner and circumstances surrounding the absence.

The Immigration judge and the Board did not evaluate the significance of petitioner's absence in this way. Instead, the Immigration judge purported to apply a "Fleuti test," which he described as "three pronged: the length of the visit, the purposes thereof, and whether the alien had to receive any travel documents to make the trip." The judge then noted that petitioner traveled "several thousand miles from the United States," was away a month, secured the I-20A form from school authorities before his departure, carried a recently extended Thai passport, and obtained a new student visa while abroad. "Applying the Fleuti yardstick," the judge concluded, petitioner's visit

broke the continuity of his physical presence during the seven years for which he must establish continuous physical presence in the United States to qualify for suspension of deportation. In the face of the distance he traveled and his having left the United States armed with all the documents necessary to obtain a new student visa in Thailand, his one-month absence cannot be characterized as an "innocent, casual, and brief excursion" outside the United States, although he was going abroad only to visit his sick mother and intended to return to the United States. Accordingly, the respondent is ineligible for suspension of deportation. His application must be denied on that ground.

The Board viewed this approach as correct. We do not.

The Immigration judge fixed his attention directly on the duration of the absence, its purpose, and whether travel documents were obtained, and proceeded to treat these three factors as if they were in themselves determinative both of the meaning of "intended" departure in section 101(a)(13) and of the...

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