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, Pub. L. No. 

99-603, 100 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, 8 U.S.C. § 1427 (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, 19 I&N Dec. 337 (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, 19 I&N Dec. 337 (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, Pub. L. No. 99-603, 

100 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 

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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, 374 U.S. 449 (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, 8 U.S.C. § 1254(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, 464 U.S. 183 (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, 8 U.S.C. § 1254 (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 Phinpathya, supra, 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.