Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

IMMIGRATION AND NATURALIZATION SERVICE v. PHINPATHYA

decided: January 10, 1984.

IMMIGRATION AND NATURALIZATION SERVICE
v.
PHINPATHYA



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

O'connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in which Marshall and Stevens, JJ., joined, post, p. 196.

Author: O'connor

[ 464 U.S. Page 185]

 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),*fn1 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

[ 464 U.S. Page 186]

     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 re-entry three months later.*fn2 On the basis of this evidence, the Immigration Judge concluded that respondent had failed to meet the 7-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 [Thai] 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 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)." Id., at 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"

[ 464 U.S. Page 187]

     issue.*fn3 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 misrepresenting 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. 673 F.2d 1013 (CA9 1981). It noted that, although respondent traveled to Thailand for three months, "she intended, at all times, to return to the United States." Id., at 1017. 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," 673 F.2d, at 1017,*fn4 the court remanded

[ 464 U.S. Page 188]

     for further proceedings on the "continuous physical presence" issue.*fn5

We granted certiorari, 459 U.S. 965 (1982), 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.*fn6

[ 464 U.S. Page 189]

     II

This Court has noted on numerous occasions that "in all cases involving statutory construction, 'our starting point must be the language employed by Congress,' . . . and we assume 'that the legislative purpose is expressed by the ordinary meaning of the words used.'" American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982), quoting Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979), and Richards v. United States, 369 U.S. 1, 9 (1962). The language of § 244(a)(1) requires certain threshold criteria to be met before the Attorney General or his delegates, in their discretion, may suspend proceedings against an otherwise deportable alien. This language plainly narrows the class of aliens who may obtain suspension by requiring each applicant for such extraordinary relief to prove that he

"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, . . . that during all of such period he was and is a person of good moral character; and 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, who is a citizen of the United States or an alien lawfully admitted for permanent residence . . . ." 8 U. S. C. § 1254(a)(1).

The ordinary meaning of these words does not readily admit any "[exceptions] to the requirement of seven years of 'continuous [physical] presence' in the United States to be eligible for suspension of deportation." McColvin v. INS, 648 F.2d 935, 937 (CA4 1981).

By contrast, when Congress in the past has intended for a "continuous physical presence" requirement to be flexibly administered, it has provided the authority for doing so. For example, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.