GRAVES

Interim Decision #3003

MATTER OF GRAVES

In Section 316(b) Proceedings

A-23443197

Decided by Commissioner November 13, 1985

(1) It is not possible to construe the uninterrupted physical presence requirement of

section 316(b) of the Act, 8 U.S.C. § 1427(b) (1982), to allow departures from the

United States. INS v. Phinpathya, 464 U.S. 183 (1984), followed; INTERP.

316.1(cX3) overruled.

(2) The effect of Rosenberg v. Fleuti, 374 U.S. 449 (1963), cannot be extended to statu-

tory schemes which include a rcoplirenacnt of uninterrupted or continuous physi-

cal presence.

(3) An applicant's failure to establish that he or she has been present in the United

States for an uninterrupted period of 1 year after lawful admission for permanent

resident bars eligibility for preservation under oeulicni 310(b).

(4) 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.

ON BEHALF OF PETITIONER: Lydia 'rugendrajch, Esquire

283 Broadway, Suite 760

New York, New York 10279

DISCUSSION: This matter comes forward on appeal from denial

by the acting district director, Hartford. The appeal will be dis-

missed.

I. FACTS

The applicant is a native and citizen of the United Kingdom who

was admitted to the United States for permanent residence on May

12, 1982. He is an employee of ITT Rayonier, Inc., a wholly owned

subsidiary of ITT Corporation. His employer desires to transfer him

to its London office in the capacity of senior sales representative.

The applicant seeks to preserve residence for naturalization pur-

poses under section 316(b) of the Immigration and Nationality Act,

8 U.S.C. § 1427(b) (1982). His application for that benefit was denied

by the acting district director, Hartford, Connecticut, based on a

non

Interim Decision # 3003

determination that the applicant had not been physically present

and residing in the United States for an uninterrupted period of at

least 1-year subsequent to his admission for permanent residence.

Under the aegis of his employment by ITT, the applicant, in the

period from May 12, 1982, to March 23, 1984, was absent from the

United States for an aggregate of 108 days in that 680-day period.

The 108-day aggregate absence was caused by a total of 15 business

trips ranging from 1 to 16 days. Examination of any particular 1-

year period within the overall period would result in a roughly pro-

portionate amount of international travel.

II. THE APPLICANT'S ARGUMENT

The applicant argues on appeal that the acting district director

failed to assess the significance of his departures under the doc-

trine enunciated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), regard-

ing exclusion proceedings under section 212 of the Act, 8 U.S.C.

§ 1182 (1082), whereby certain departures from the United States

may be regarded as sufficiently insignificant as not to have oc-

curred for purposes of law. The applicant argues that such an anal-

ysis is properly utilized in determining eligibility for preservation

of residence under section 316(b). We disagree.

III. THE LEGISLATIVE HISTORY OF SECTION 816(b)

REQUIRES A STRICT INTERPRETATION OF THE PHYSICAL

PRESENCE REQUIREMENT

Although the published legislative history of this provision does

not offer any specific information touching on this issue, the evolu-

tion of section 316(b) and its predecessors indicates quite clearly a

steady tightening of the residence requirement_ The Act of March

2, 1929, 45 Stat. 1512 (repealed 1940), provided that absences from

the United States for periods of 1 year would break the continuity

of residence for purposes of naturalization.

Subsequently, however, Congress determined that some relief

was warranted for aliens whose duties as employees of the United

States required them to remain in foreign countries for extended

periods of time. Congress consequently amended the residence re-

quirements to allow permanent residents who had declared an in-

tention to become United States citizens to reside abroad without

breaking the 8 year residence required for naturalization. To qual-

-

ify, such persons had to satisfy the Secretary of Labor, prior to

leaving the United States, that the residence abroad was for the

purpose of working for the United States Government, a United

338

Interim Decision #3003

States institution of research, or a United States firm engaged in

the development of foreign trade. Act of June 25, 1936, 49 Stat.

1925 (repealed 1940).

This amended statute was found to be inadequate. It was discov-

ered that aliens came to the United States for short periods of

time, declared their intention to be naturalized, applied for and re-

ceived the benefits of the statute, and then returned to their em-

ployment abroad. In re Pinner's Petition, 161 F. Supp. 337, 389

(N.D. Cal. 1958), citing IT Rep. No. 2659, 75th Cong., 3d Sess. (1938).

The statute was therefore further amended to limit its benefit to

aliens who had resided in the United States for at least 1 year

prior to applying for preservation of their United States residence.

Act of June 29, 1938, 52 Stat. 1247 (repealed 1940).

In 1952, Congress added the requirement that an alien be phys-

ically present in the United States for at least one half of the re-

quired 5-year residence period for naturalization. This requirement

did not apply to aliens working for or under contract with the

United States Government. The 1952 revisions did, however, add a

new qualification to the 1-year residency requirement which was

already in effect for such aliens. This new qualification required

them not only to reside in the United States for 1 year, but to actu-

ally be continuously physically present in the United States during

that time. Immigration and Nationality Act of 1952, section 316(b),

8 U.S.C. § 1427(b). These provisions remain in effect.

It is clear from this history of revisions to the residence and

physical presence requirements that Congress intended to amelio-

rate the harshness of the requirements by providing some exemp-

tions. It is equally clear that the exemptions were meant to be spe-

cific and exclusive. While Congress provided some relief from the

usual residence and physical presence requirements for certain per-

sons, it also levied specific conditions before this relief could ha

granted.

IV. THE "PHYSICAL PRESENCE" REQUIREMENT OF

SECTION 316(b) CANNOT BE LIBERALLY CONSTRUED

The crucial language in the section 316(b) exemption is that re-

quiring a person to be "physically present" for an "uninterrupted

period of at least one year." This language is very similar to the

physical presence language of the suspension of deportation provi-

sion in section 244 of the Act, 8 U.S.C. § 1254 (1982). In addition,

the history of the suspension of deportation provision is also very

similar to that of section 316(b), an ameliorative provision made

more restrictive over time, which provides a benefit to certain spe-

Interim Decision #3003

cific categories of people. For these reasons, section 316(b) and sec-

tion 244 should be interpreted and applied consistently with one

another.

Section 244 of the Act states in part that an alien may be grant-

ed suspension of deportation if 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." The Su-

preme Court in INS v. Phinpathya, 464 U.S. 183 (1984), held that

this requirement was meant to be literally construed. The court

stated that the "statutory switch from 'continuous residence' to

`continuous physical presence' was no simple accident of drafts-

manship." In the Court's view, the change was made to prevent

abuses, and Congress would not have made the statutory change if

it had been seeking only to require the maintenance of a "domicile

or general abode." Id. at 191. The Court further stated that the

"citizenship and suspension of deportation provisions are interre-

lated parts of Congress' comprehensive scheme for admitting aliens

into this country," id. at 191-92, and that it is clear "that Congress

intended strict threshold criteria to be met" before an alien could

qualify for suspension of deportation. Id. at 195.

In the face of this holding by the Supreme Court, construing

similar language with a similar legislative history, it is not possible

to construe the uninterrupted physical presence requirement of

section 316(b) to allow departures.

V. CONCLUSION AND ORDER

The ameliorative effect of Rosenberg v. Pleuti, supra, therefore is

not properly extended to statutory schemes premised on a require-

ment of continuous physical presence. We concur in the decision of

the district director and we will dismiss this appeal accordingly.

IT IS ORDERED: that the appeal be and the same is hereby

dismissed.