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 Nationality 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, notwithstanding 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 section 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 directing 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 nonimmigrant 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 allegations 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 subject 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 requesting 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 hardship 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 September 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, interrupt 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 signifieant 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 suspension 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 immediately 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 pres236 
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 continuity of physical presence, and make the alien ineligible for suspension 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, "continuous- 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 interpreted 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 during 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 McLeod case the court held that because Government agents had improperly induced McLeod, an applicant for suspension of deportation, 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. 

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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 absence 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 residence." . 

• 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.