Immigration and Naturalization Service v. Phinpathya

PETITIONER:Immigration and Naturalization Service
RESPONDENT:Padungsri Phinpathya
LOCATION:Board of Immigration Appeals

DOCKET NO.: 82-91
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 464 US 183 (1984)
ARGUED: Oct 03, 1983
DECIDED: Jan 10, 1984

ADVOCATES:
Bert D. Greenberg – on behalf of the Respondent
Elliott Schulder – on behalf of the Petitioner

Facts of the case

The Immigration and Nationality Act grants the Attorney General the power to suspend the deportation of any otherwise deportable alien if the person has been consistently physically present in the United States for at least seven years, is of good moral character, and whose deportation would represent great hardship to the person and/or family members.

Padrungsi Phinpathya, a citizen of Thailand, first entered the United States in 1969 as a nonimmigrant student. She and her husband, a Thai citizen who entered the country in 1968, were granted permission to stay until July 1971. When their visas expired, they chose to stay without the permission of the proper authorities. In January 1977, Immigration and Naturalization Services (INS) commenced deportation processes on the couple. They applied for a suspension, which an immigration judge granted to Phinpathya’s husband but denied for her because she did not meet the continuous residency requirement. Phinpathya’s own testimony showed that she left the country in 1974 and improperly obtained a visa from the US consular office in Thailand for her return three months later.

The Board of Immigration Appeals affirmed the judge’s ruling and held that Phinpathya’s illegal status when she left and returned to the US made the absence “meaningfully interruptive” of her residency and made her ineligible for the suspension of deportation. The U.S. Court of Appeals for the Ninth Circuit reversed and held that, despite her absence, Phinpathya’s intent was always to return to the US.

Question

Should the “continuous physical presence” requirement for suspension of deportation in the Immigration and Nationality Act be interpreted literally?

Warren E. Burger:

We will hear first this morning Immigration and Naturalization Service v. Padungsri Phinpathya.

Mr. Schulder, you may proceed whenever you are ready.

Elliott Schulder:

Mr. Chief Justice, and may it please the Court:

The question in this case is whether a deportable alien who first arrived in this country more than seven years before applying for suspension of deportation can establish physical presence in the United States for a continuous period of seven years when during that seven-year period the alien’s illegal presence in this country was interrupted by a three-month trip abroad at the conclusion of which the alien knowingly misrepresented her immigration status to secure reentry to the United States.

The facts of this case are as follows: Respondent is a native and citizen of Thailand who first arrived in the United States in 1969 as a nonimmigrant student, and she was authorized to remain until July 25, 1971.

Her husband arrived in this country in 1968 also as a nonimmigrant student.

He was also authorized to remain until July 1971.

Both Respondent and her husband remained beyond the July 25, 1971 date.

The Immigration and Naturalization Service instituted deportation proceedings in 1977 charging that Respondent had overstayed her visa.

Respondent conceded deportability but applied for suspension of deportation under Section 244(a)(1) of the Immigration and Nationality Act.

Section 244(a)(1) permits the Attorney General or his delegates to suspend deportation of an alien who shows that he was physically present in the United States for a continuous period of seven years immediately preceding the application for suspension of deportation who also shows that he was a person of good moral character during that seven-year period and who also is able to show that he is a person whose deportation would in the opinion of the Attorney General result in extreme hardship to the alien or to certain family members who are U. S. citizens or lawful resident aliens.

In this case Respondent admitted that from January 1974 until April 18, 1974 she was absent from the United States when she and her two children took a trip to Thailand to visit her mother.

The Immigration judge concluded that this absence was meaningfully interruptive of the continuity of Respondent’s physical presence in the United States.

The judge applying the factors developed by this court in Rosenberg v. Fleuti pointed to several factors, first, the length of the absence which in this case was three months.

The fact that Respondent obtained travel documents prior to the trip and while she was abroad tended to demonstrate the deliberateness with which the trip was undertaken and pointed to the fact that Respondent had an opportunity to consider the significance of her trip on her immigration status.

Finally, the Immigration judge noted that Respondent knowingly misrepresented her status as the spouse of a nonimmigrant student even though her husband’s student visa had expired approximately two and a half years earlier.

Harry A. Blackmun:

Mr. Schulder, did the Service bring any kind of proceeding against the husband?

Elliott Schulder:

Yes, it did.

Harry A. Blackmun:

What is the status of that one?

Elliott Schulder:

The husband’s proceeding… The Immigration judge found the husband had met the requirements of the statute and was eligible, and I believe the judge found that the husband should be granted relief under the suspension of deportation statute.

The Board of Immigration Appeals reserved that and the Board in turn was reversed by the Court of Appeals so the matter was sent back to the Board of Immigration Appeals for further proceedings.

I am not aware whether any further proceedings have in fact been held with respect to the husband’s case.

Harry A. Blackmun:

As far as you know he, too, is still in this country.

Elliott Schulder:

That is correct.

Sandra Day O’Connor:

Mr. Schulder, as long as you are interrupted what is the status of any reapplication now by the Petitioner?

Elliott Schulder:

Petitioner reapplied for suspension of deportation before the Board of Immigration Appeals while after this Court granted certiorari she argued that more than seven years had elapsed since the 1974 trip and claimed that she was entitled to have her deportation proceedings reopened for a new application for suspension of deportation.

That application for motion to reopen is still pending before the Board of Immigration Appeals.

Sandra Day O’Connor:

It is your position that that does not make this case moot because of the discretionary nature of that proceeding.

Elliott Schulder:

That is correct, Your Honor.

The Board of Immigration Appeals affirmed the Immigration judge’s decision.

Elliott Schulder:

In addition to the factors mentioned by the Immigration judge the Board pointed cut that Respondent had overstayed her visa before her trip to Thailand and she reentered this country by misrepresenting her status.

According to the Board, the trip, therefore, substantially increased the likelihood that Respondent’s illegal status would be discovered and that Respondent would be deported.

The Court of Appeals for the Ninth Circuit reversed.

The Court concluded that the factors enumerated in Fleuti were merely evidentiary with respect to the significance of an alien’s absence and that even if an absence increases the risk of an alien’s deportation it cannot be meaningfully interruptive if the hardships associated with that deportation would be equally severe if the absence had not occurred.

For the purposes of this case we accept the application of the test announced in Fleuti in the different context of suspension of deportation.

Since the Ninth Circuit’s decision in Wadman v. INS in 1964, both the courts and the Board of Immigration Appeals have applied the Fleuti standards in determining whether an absence by an alien was meaningfully interruptive of the continuity of the alien’s physical presence.

In other words, we believe–

William J. Brennan, Jr.:

You said you accept the Fleuti standards for the purposes of this case.

What does that mean?

You have reservations whether you will continue to–

Elliott Schulder:

–No, Your Honor, but just in the… I am arguing this case in the context of the Court’s decision and the issues that are–

William J. Brennan, Jr.:

–Put you are not suggesting that the Agency no longer wants to follow the Fleuti standard?

Elliott Schulder:

–Oh, no.

No, Your Honor.

In fact, the Agency believes that there is room for flexibility in applying the statute.

The problem here, however, is that the test created by the Court of Appeals far exceeds any flexibility that was permitted by this Court in Fleuti.

In fact, it wrenches the Fleuti test out of the context in which that test was created, and it produces wholly irrational results in our view.

Fleuti, in fact, created a very narrow rule to deal with an exceptional situation where the literal construction of the statute would subject the alien to the sport of chance and meaningless and irrational hazards that were noted in the Court’s opinion in Fleuti.

The Court relied largely on the analysis of Judge Hand in his decision in DiPasquale v. Karnuth and on this Court’s earlier decision on Delgadillo v. Carmichael.

John Paul Stevens:

Mr. Schulder, is it not also true that the Court relied on the comparison of the test of residence where there could be more substantial interruptions under the residence standard in the Fleuti opinion?

Did not the Court also find support in the notion that residents may be interrupted for a different purpose?

Elliott Schulder:

You are saying the Court of Appeals in this case?

John Paul Stevens:

No, no.

I am talking about the Supreme Court in the Fleuti opinion itself because that did not confine its reasoning to the examples you give.

It also drew support from the fact that in measuring residence Congress has allowed substantial interruptions not to interrupt residence.

Elliott Schulder:

That is true.

The Court’s opinion did point to that provision of the Immigration Act.

John Paul Stevens:

Right.

Elliott Schulder:

Of course, this case involves a separate statute which does not refer to residence but which refers to physical presence.

John Paul Stevens:

Right.

Elliott Schulder:

In fact, the statute had been amended to exclude residence and to insert physical presence into the statute.

Lewis F. Powell, Jr.:

Did Fleuti involve the same statute?

Elliott Schulder:

No, Fleuti involved a different provision of the Immigration Act.

Lewis F. Powell, Jr.:

In your opinion that makes no difference?

Elliott Schulder:

Well, as I said before since 1964 when the Ninth Circuit applied the same test that had been developed by this Court in Fleuti for the separate statutory context of the suspension of deportation statute both the courts and the Board of Immigration Appeals have applied the Fleuti standards.

As the Court had said in Wadman the Court believed that the word “continuous” in this statute should no more be read rigidly as the word “intent” or not intended in the entry provision of the statute that was at issue in Fleuti.

We agree that a certain amount of flexibility is proper under the statute.

The flexible construction of the entry provision in Fleuti as the Court pointed out in that case protects a resident alien from the unsuspected risks and unintended consequences of wholly innocent action.

Lewis F. Powell, Jr.:

Under the plain language of the statute where do you find the flexibility?

Elliott Schulder:

The plain language of the statute I would–

Lewis F. Powell, Jr.:

Is not flexible is it?

Elliott Schulder:

–certainly would not tend to support a flexible reading.

Lewis F. Powell, Jr.:

Is there anything in the legislative history that suggests flexibility?

Elliott Schulder:

The only thing in the legislative history that might suggest flexibility is the history of the suspension of deportation statute before the insertion of the particular language at issue here.

In other words, the whole notion of suspending deportation was one that was developed by Congress in order to give the Attorney General some discretion to grant relief in cases which previously had only been covered by private bills submitted to Congress.

Lewis F. Powell, Jr.:

Is there anything in the legislative history that suggests an absence of congressional intent to provide flexibility?

Elliott Schulder:

Yes, there are indications in the legislative history that indicate that Congress meant the statute to be construed quite strictly if not literally.

Lewis F. Powell, Jr.:

If so, why does the Solicitor General take the position you have stated here?

Elliott Schulder:

The reason for our position essentially is that the Board of Immigration Appeals which is the delegate of the Attorney General and has been administering this statute has in a sense acquiesced in the application of the Fleuti standards to this particular statute.

As we pointed out in our reply brief we certainly think that there ought to be room in the statute to cover certain kinds of situations, for example, the situation that was involved in the DiPasquale v. Karnuth situation where an alien took an overnight train from Buffalo to Detroit.

There was nothing in the record that established that he knew that the train was going to go through Canada during the night.

Certainly there must be, we think, some room in the statute for flexible application, and we think that both the courts and the Board of Immigration Appeals and the Immigration judges have been applying the Fleuti standards here.

They know the contours of the test, and they have been applying it without any major problems until the Ninth Circuit in this case in its earlier opinion in Kamheangratiyooth totally obliterated the–

William H. Rehnquist:

Did the government seek certiorari in the Wadman case?

Elliott Schulder:

–No, I do not believe so.

Under the Fleuti test the question essentially is whether it is reasonable to conclude that the alien should have considered the adverse immigration consequences of a trip abroad.

Applying the Fleuti factors to this test we submit that Respondent clearly should have considered the adverse implications of her trip.

For one thing, the trip itself was quite lengthy.

It was three months in duration, a substantial period of time especially when compared to the two-hour trip across the border involved in Fleuti.

Second, Respondent obtained travel documents prior to the trip evidencing the fact that she had an opportunity to consider the consequences of the trip.

Elliott Schulder:

Third, Respondent had been here illegally for two and a half years when she left for Thailand.

During the trip she knowingly misrepresented her immigration status to obtain a reentry visa and thereby increased the risk that her illegal status would be discovered.

John Paul Stevens:

Mr. Schulder, could I ask one question?

These factors I think unquestionably could be relied on by the Attorney General as a matter of discretion to deny suspension even if you should lose here.

Is it your position on the eligibility for consideration as a discretionary matter that every three months interruption would be sufficient to defeat the continuous presence requirement?

Elliott Schulder:

I think it would be the government’s position that three months is simply too substantial a period of time.

William J. Brennan, Jr.:

How about one month?

Elliott Schulder:

Excuse me?

William J. Brennan, Jr.:

How about one month?

Elliott Schulder:

Well, as we say in our brief we do not think that the Fleuti test establishes bright lines as to what the quantum is of–

William J. Brennan, Jr.:

What is the standard of judicial review?

Elliott Schulder:

–The standard of judicial–

William J. Brennan, Jr.:

You are asking us to say this is unreasonable?

Elliott Schulder:

–Well, we are asking the Court to apply the test that was established in Fleuti and to conclude that the test that was created by the Court of Appeals in this case is totally inconsistent with Fleuti.

William J. Brennan, Jr.:

Totally inconsistent.

Elliott Schulder:

That is correct.

William J. Brennan, Jr.:

Because of all of the factors or just the three months?

Elliott Schulder:

No, because what the Court of Appeals did here was essentially ignored all of the factors that were enumerated in Fleuti and said that even though there was an absence of three months, even though there were travel documents obtained, even though there was a misrepresentation about status in order to reenter so long as the alien can show that there are hardships associated with deportation then the alien has established continuous physical presence for a seven-year period even though she was gone for three months.

We think that that simply turns Fleuti on its head.

Warren E. Burger:

What would you say about a three-month absence which was explained by the individual showing that he became ill on arriving in Thailand and was not permitted by the doctors to leave until he had fully recovered three months later?

Would that explanation satisfy the government’s standard?

Elliott Schulder:

It would seem to me that that certainly would satisfy the standards of the Immigration Service because in that situation the alien simply would have no choice in the matter.

Warren E. Burger:

Was there any explanation offered here?

Elliott Schulder:

No, there was not.

In Respondent’s Court of Appeals brief her attorney claimed that the trip was to visit her sick mother, but there is nothing in the record of the administrative proceedings in this case that shows that Respondent’s mother was ill or that the illness if there was any necessitated or occasioned the trip.

Thurgood Marshall:

Mr. Schulder, my first hypothetical is if somebody goes to Thailand because her mother is ill and it develops that her mother has appendicitis which is over in a week, that would be okay I would assume.

Elliott Schulder:

I would assume so, Your Honor.

Thurgood Marshall:

Suppose it develops it was cancer and it took three months.

Would that make any difference?

Elliott Schulder:

I think it would make a difference.

Elliott Schulder:

The alien has to consider… The point of this whole test is whether the alien should have considered that there would be adverse consequences.

This was an alien who had illegally overstayed her visa in this country.

She certainly should be charged with knowing that a trip abroad certainly a lengthy trip abroad–

Thurgood Marshall:

Would that apply to the one-week trip to Thailand?

Elliott Schulder:

–In the case of an alien who had been here illegally I would say–

Thurgood Marshall:

I did not get through with that.

I am going to give you one day.

Elliott Schulder:

–In the case of an alien who has been here illegally and leaves while the alien is here illegally I would submit that that alien might very well be found not to have–

Thurgood Marshall:

Go to Thailand at all–

Elliott Schulder:

–I think the alien would not be able to meet the Fleuti test absolutely because any alien who is here illegally–

Thurgood Marshall:

–You just destroyed the statute.

Elliott Schulder:

–That is not true.

There are–

Thurgood Marshall:

You say there is no way.

Elliott Schulder:

–No, well Wadman itself involved an alien who had been here lawfully prior to the trip, and the factors–

Thurgood Marshall:

But you say the statute does not apply if the alien is here having overstayed his time.

You are not saying that are you?

Elliott Schulder:

–No, I am not saying that.

The question is whether an absence is meaningfully interruptive of the continuity of the alien’s physical presence in the country.

That is–

Thurgood Marshall:

You say three months it is.

Some people take a vacation for three months.

Elliott Schulder:

–That is correct.

Thurgood Marshall:

You would not consider that an interruption would you?

Elliott Schulder:

I would consider that a disruption in the context of this particular statute.

The question here is whether the Court should stretch the meaning of the statute to benefit an alien in Respondent’s position.

John Paul Stevens:

Mr. Schulder, is it not true that unlike the situation that arose in Fleuti where the question is whether an entry was made which could involve a permanent resident who is lawfully here, is it not true that by hypothesis under this statute where the consideration whether to suspend deportation that there is an illegal presence in every case?

Elliott Schulder:

There is not necessarily an illegal presence before the trip.

In Wadman there was not.

John Paul Stevens:

But at least it is illegal as of the time of application to suspend deportation.

Elliott Schulder:

That is correct.

In Kamheangpatiyooth again there was no illegal presence at the time of the trip.

Lewis F. Powell, Jr.:

Mr. Schulder–

–Do all of these hypotheticals that keep pushing you in one direction and then in another suggest that government would be better off adhering to the strict language of the statute and the legislative history?

You would still exercise discretion in the case where the train crossed the Canadian border?

I am talking now about what judges should do.

What standard is there once you leave the statute and the legislative history?

As soon as you leave the statute you lose the fellow that goes on the train overnight.

Elliott Schulder:

That may well be true if you apply the statute literally.

Lewis F. Powell, Jr.:

Perhaps in a court but–

Elliott Schulder:

The point is though that the Immigration authorities have been applying this test with some success over the years for almost 20 years.

Lewis F. Powell, Jr.:

–And here we are.

Elliott Schulder:

Here we are, but the reason we are here is that the Ninth Circuit totally jettisoned that test.

What–

Sandra Day O’Connor:

Mr. Schulder, it is very difficult, though, to understand why you should apply Fleuti to a different statute and to an alien who is illegally here, not someone who has permanent resident status.

It is just hard to understand your position at all on this thing.

I agree.

Why did the government not seek certiorari in Wadman?

Elliott Schulder:

–I have no idea.

William H. Rehnquist:

I know you were not there and probably were not even born then.

[Laughter]

Elliott Schulder:

I am not that young, Your Honor.

[Laughter]

If this Court exercising its responsibility to construe the statute determines that in fact the statute should be applied literally we will certainly be bound by that interpretation.

John Paul Stevens:

Mr. Schulder, is it not true that in last analysis the question is whether these decisions shall be made by Congress, by private bills or by the Attorney General?

In other words, if you prevail they still have the remedy they used to have before the statute was enacted.

Elliott Schulder:

That is correct.

As I was pointing out to the Court, the problem of the test that the Court of Appeals adopted here is that even where the Immigration authorities show that the alien has taken a substantial trip abroad, has falsified information in order to return, has obtained travel documents, all these factors are totally ignored so long as the alien can establish that there was no diminution of hardship.

In our view this compresses two separate elements of the statute, the extreme hardship element that the Court dealt with in the Wang case and the continuous physical presence element that is involved here, into one element.

In fact, in Respondent’s brief at pages 19 and 23 Respondent’s counsel admits that he cannot come up with any example of a situation where an alien could show extreme hardship but not continuous physical presence under the statute.

Elliott Schulder:

The upshot of the Court of Appeals’ approach here is that it essentially converts the continuous physical presence language of the statute into a continuous residence requirement.

In our view the test of the Court of Appeals would not be any different or lead to any different results if the statute simply said residence instead of physical presence.

But as I said earlier in response to Justice Stevens’ question Congress inserted the words 1952 in place of residence in order to discontinue the lax practices and to discourage abuses that had arisen under the residence standard.

In order to give meaning to Congress’ action here we submit that the judgment of the Court of Appeals should be reversed.

I would like to reserve the remainder of my time.

Warren E. Burger:

Very well.

Mr. Greenberg.

Bert D. Greenberg:

Mr. Chief Justice, and may it please the Court:

Respondent’s position, one position in this matter is that the action at bar is actually moot.

The Respondent has accumulated seven years’ continuous physical presence in the United States since her return from Thailand in April 1974.

Since the filing of this case, therefore, and the Respondent’s independent qualification on the sole question presented to this Court, namely, did she have the seven years’ continuous presence, we believe that this Court should abate proceedings and wait for a decision from the Board of Immigration Appeals on the pending motion which has been on file since February of this year.

The Board–

Sandra Day O’Connor:

Mr. Greenberg, if the statute simply allows discretion in the Attorney General assuming someone has been continuously present here for that interval of time to grant relief or not, how can you argue that it is moot?

Your argument is really that we should defer to the administrative proceedings and let them decide it because it might become moot, but it certainly is not moot today is it?

Bert D. Greenberg:

–Well, I believe it can be, Your Honor.

The Immigration judge in the hearing found Respondent eligible for two of the three statutory requirements of Section 244.

The Respondent was found eligible as having good moral character and as demonstrating extreme hardship albeit through her daughter’s illness.

The hardship was imputed to her through her daughter’s illness, and the only issue that the Immigration judge did not find for her on and did find for the husband on all three issues was did she have a continuous seven-year presence.

Petitioner’s argument is without that she cannot have any eligibility for 244 relief.

We simply say she–

Sandra Day O’Connor:

Well, even if she met all the qualifications, is there not a residuum of discretion in the Attorney General whether to apply it or not?

Bert D. Greenberg:

–Yes, Your Honor.

It would just seem peculiar to me that if she were found eligible at the time of the Immigration hearing as to moral character and extreme hardship and for the fact that she did not have the seven years then but she has it now, I would think it appropriate for the Board to first make a ruling on that rather than–

Sandra Day O’Connor:

But you are arguing for a deferral.

It is not technically moot today is it?

Bert D. Greenberg:

–I am not sure I understand the technical mootness doctrine, Your Honor.

I believe that the matter could be moot.

Sandra Day O’Connor:

Let’s just say it is not moot today is it?

Bert D. Greenberg:

Okay, Your Honor.

William H. Rehnquist:

But your position would simply allow an alien who can postpone the inevitable for a while to come in at the end by virtue of seven years’ residence even though three or four years might have been simply pursuant to fighting something that the alien ultimately loses.

Bert D. Greenberg:

Well, it is our position that the Respondent was eligible then at the time of the hearing, but since there was an adverse decision on that one issue and since seven years has passed we did not see why the Respondent should get a hearing on that matter prior to coming to this tribunal.

Warren E. Burger:

Mr. Greenberg, we have been testing hypotheticals from three months down.

You obviously think three months is not a serious interruption.

What about four, five, six or seven months?

I will put the questions all in one.

You tell me where the cutoff is.

Bert D. Greenberg:

Listening to that, Mr. Chief Justice, it really goes to the heart of my argument.

We do not believe that there can be a purely mechanical test as to one day cut of the country or three weeks out of the country because we are dealing with human beings and everybody–

Warren E. Burger:

Here we are dealing with three months so let’s start there.

Bert D. Greenberg:

–All right.

Depending upon the totality of circumstances in this case the Immigration judge firstly has to make a decision whether based or the precedent decisions that are used here, the Fleuti, the Wadman doctrine, the Kamheangpatiyooth standard announced by the Circuit Court of Appeals in the Ninth Circuit, making it an individual determination on the totality of circumstances surrounding each of the three elements of Section 244, being the trier of fact does he feel, does the Immigration judge feel that that person’s entry constituted a break in a seven-year period.

If you do not have some type of standard like that what you will have in every Immigration court around the United States is second-guessing by Immigration judges because nobody has a standard to propound.

William H. Rehnquist:

You say second-guessing by the Immigration judges.

Who do you think the Immigration judges are second-guessing?

Bert D. Greenberg:

Each other in effect, Your Honor, because one judge in one Immigration courtroom in one state may feel that a trip involving any travel documents out of the United States constitutes a break and another Immigration judge may not depending upon the purpose of that trip and the brevity of that trip.

William H. Rehnquist:

Is that not a very good reason for going back to the statutory language which we are dealing with of physically present in the United States for a continuous period of not less than seven years?

Bert D. Greenberg:

It would solve the problem.

I agree with Your Honor on that, but I do not think it is the way the government itself as represented by Petitioner wants the problem solved.

William H. Rehnquist:

Well, the question is not how the government “wants the problem solved”.

The question is what Congress intended by that statute is it not?

Bert D. Greenberg:

Well, Respondent here believes that this remedy–

William H. Rehnquist:

You cannot answer my last question whether it does not depend on the intent of Congress?

Bert D. Greenberg:

–Yes, it does, Your Honor.

It depends on the intent of Congress.

But the intent of Congress as we read the intent in this particular legislation, Section 244, and despite the revisions that have gone on over the years is that this is a statute in the nature of an equitable remedy.

Historically equitable remedies are interpreted more liberally.

Otherwise–

William H. Rehnquist:

What authority do you have for the proposition that this is in the nature of an equitable remedy as you put it?

Bert D. Greenberg:

–Discussions in the administrative reports and the legislative reports about when the bill was drafted and redrafted, Your Honor.

William H. Rehnquist:

I thought that the legislative history indicated the desire for a fairly literal interpretation.

William H. Rehnquist:

You do not agree with that?

Bert D. Greenberg:

No, I do agree with you, Your Honor.

I believe a fairly literal reading of the statute is fine, but I think the nature of the remedy itself more or less tends to be equitable rather than strictly law related.

William H. Rehnquist:

Why do you think that?

Bert D. Greenberg:

Because it allows for a person who has no other eligibility for permanent residence to show that by their ties to the United States, by their devotion to this country, by their commitments to this country that they can have the normal laws suspended on their behalf.

William H. Rehnquist:

That is an argument that one might well make to Congress, but where do you find that Congres has accepted that argument?

Bert D. Greenberg:

I cannot speak to that, Your Honor.

Warren E. Burger:

I am not sure you responded to my question.

What about six months if the interruption had been six months and unexplained?

Bert D. Greenberg:

Depending upon other factors in the case, Mr. Chief Justice, if other family members were here, if there were a reason for going abroad, if there were certain ties to the United States–

Warren E. Burger:

Whose burden is it to show and explain those things?

Bert D. Greenberg:

–The alien’s, Your Honor.

Warren E. Burger:

Did he show that he had an illness while he was abroad, for example, as one reasonable explanation for prolonging the absence?

Bert D. Greenberg:

No, Your Honor.

Warren E. Burger:

Where do we draw this line?

Bert D. Greenberg:

Where would the line be drawn?

Warren E. Burger:

Yes.

Six months?

Twelve months?

Bert D. Greenberg:

Our basic approach, Your Honor, is that we cannot draw the line that a test on this particular issue has to be a test of totality of circumstances and that there is no better way to draw the line than to say to the Immigration judge and to the Board of Immigration Appeals you must look at the factors in each case and make an independent decision but look at each factor of the statute independently.

We are not–

Warren E. Burger:

The government has conceded if I understood the Solicitor General’s Office correctly that if an explanation could be made that the man was ill and could not return that would be satisfactory.

What explanation was offered here.

Bert D. Greenberg:

–In our case, Your Honor, none.

In fact, there is an error which the counsel has alluded to.

There was an error in the transcript… not an error in the transcript.

There was an error done in our brief indicating that the trip abroad was to visit her sick mother.

There was no evidence at the hearing that she was a sick mother.

That was picked up and picked up and was never corrected.

We apologize to the Court for that.

Bert D. Greenberg:

The female Respondent merely stated that she was going to Thailand to visit her mother.

What our basic argument is is that–

Warren E. Burger:

Do I understand that if the absence were two years you would not be here?

Bert D. Greenberg:

–Once again, if we apply this type of test, a totality of circumstance test, which we feel is applied in other areas of law which is a logical extension of the Fleuti-Wadman doctrine that the Immigration judge can look at the factors involved and make a decision whether the absence was interruptive of the seven-year period.

But to hang it on a merely mechanical 3 days or 30 days does not seem appropriate.

Warren E. Burger:

Or two years.

Bert D. Greenberg:

Or two years.

That is correct.

Thurgood Marshall:

What do you get for the unexplained?

I could consider a one-month unexplained absence from the country being bad and a two-year explained absence not being bad, could you not?

Bert D. Greenberg:

Yes, Your Honor.

Thurgood Marshall:

We do not have that in this case because there was no explanation.

Bert D. Greenberg:

That is correct.

Thurgood Marshall:

What do you do with that?

Bert D. Greenberg:

You go back to the actual trial judge who was the trier of fact on the spot and look at what he decided as to the cause of sufficiency of the absence.

Thurgood Marshall:

You mean he “explained”?

Bert D. Greenberg:

No, there was no explanation on the record.

Thurgood Marshall:

Did he go outside the record in his explanation?

Bert D. Greenberg:

No, Your Honor.

Thurgood Marshall:

I have problems on the nonexplanation and you have not helped me yet.

Can you give me some help?

Bert D. Greenberg:

I have not helped you, no, Your Honor.

Byron R. White:

It was of record that she went to visit her mother?

Bert D. Greenberg:

That is correct.

That is correct, Your Honor, but there was no language in the transcript about visiting a sick mother.

Byron R. White:

I understand but nevertheless the explanation was she went to visit her mother.

Bert D. Greenberg:

That is correct.

Thurgood Marshall:

Well, I know it is outside the record but why did you not say that?

Bert D. Greenberg:

I hoped it was the truth, Your Honor.

The Petitioner herein has cited and has stated for the Court in their brief that other Circuit courts around the United States have felt compelled not to follow the Ninth Circuit’s reasoning in the Kamheangpatiyooth test and in fact have criticized, that test as being too broad and destroying any standard that we have.

Bert D. Greenberg:

We disagree on that.

We believe that other cases from other Circuits are basically using the same test of a totality of circumstances but are just saying it in different ways or just interpreting it in different ways.

For example, the recent Eleventh Circuit case in 1983, Fedalgo Valez v. The Immigration Service, it was held in that case that a one-day trip to Canada where the alien proceeded to obtain an Immigrant visa knowing that her husband had died… That was the eligibility for getting the immigrant visa through her citizen husband… broke the seven year period for residence.

That is a one-day trip abroad.

We have no problem with that.

An alien who leaves the United States on the compulsion, and one of the cases that we have indicates leaving the United States under compulsion one-day abroad breaks the seven-year period.

This type of case we believe the Ninth Circuit could make a finding that there is a break in the seven-year residence here.

Petitioner argues basically for a strict interpretation of Section 244, but concedes that the Fleuti-Wadman doctrine applies.

There was no appeal filed on Kamheangpatiyooth so we really have an inconsistent position that we are faced with constantly as members of the Immigration Bar in trying to decide is it a strict standard or it is a liberal standard.

We believe the remedy to that is to allow the Immigration judges wide latitude in making their decisions.

If the Immigration does that and the Board of Immigration Appeals if there is an appeal filed by either side makes an independent determination I do not believe we will be in a situation where we have been criticized for trying to go around the Wang decision decided by this Court.

Byron R. White:

How do you square the Court of Appeals test in this case with the Fleuti factors?

Bert D. Greenberg:

Fleuti mentioned several factors involved in an entry statute.

Fleuti did not say these are the only factors involved.

Fleuti said that there may be by judicial inference or other factors may be read into it that can be used in determining whether entry was made, and they said–

Byron R. White:

What would you say if the factors mentioned in Fleuti were exclusive?

What if those were the only factors.

Would the Ninth Circuit’s test not be inconsistent with that?

They seem to feel compelled to say that the Fleuti factors were only some evidence and you could look at other evidence.

What if you were confined to the Fleuti factors here?

Bert D. Greenberg:

–With Fleuti alone without Wadman?

Byron R. White:

Yes.

Bert D. Greenberg:

I think that you–

Byron R. White:

No, not with… Wadman just applied the Fleuti factors in this context.

Bert D. Greenberg:

–Yes, Your Honor.

Byron R. White:

But the Ninth Circuit said the Fleuti factors and the Wadman factors were just evidentiary.

Bert D. Greenberg:

Yes.

Byron R. White:

And came up with this test.

Bert D. Greenberg:

Yes.

Byron R. White:

What if the Fleuti factors were the only factors you should look at?

Bert D. Greenberg:

You would still have some latitude on the part of the Immigration judges to say what is casual, what is innocent.

Byron R. White:

My question is, would the Ninth Circuit’s judgement in this case be wrong, wouldn’t it, under the Fleuti factors?

Bert D. Greenberg:

If I understand your honor correctly, if these was no latitude in the Ninth Circuit to interpolate other factors into that Fleuti decision, or even to say what the factors in the Fleuti decision really are, yes, I think they that would be bound by that.

Byron R. White:

Well, Fleuti certainly didn’t suggest that just because the hardship remained the same, that there could be relief.

That isn’t what–

Bert D. Greenberg:

No.

Byron R. White:

Fleuti said, that’s not what Wadman said either, is it?

Bert D. Greenberg:

It was a taking off point for how to interpret in Wadman, how to interpret a statute that does not seem to, on a literal reading of it, permit anything to be read into it that is not there on the printed page.

John Paul Stevens:

Mr. Greenberg, while I have you interrupted, I think I asked your opponent, is whether Congress or the Attorney General shall decide questions like this.

You do still have a remedy by way of private bill in Congress do you not?

Bert D. Greenberg:

Well, the private bill remedy, Your Honor, is practically an academic issue today because Rule 6 in the House and very few private bills are… The old benefit of the private bill where they would be introduced and they would sit during two sessions of Congress does not happen realistically any more.

When they are introduced they get voted on quite quickly.

The private bill is really not a solution here.

John Paul Stevens:

This is the same statute that was involved in the Chadha case is it not?

Bert D. Greenberg:

That is correct, Your Honor.

John Paul Stevens:

That case does not really shed any light on our problem does it?

Bert D. Greenberg:

There is one analogous issue in that case.

In 1980 Chadha became married to a U.S. citizen and had alternate relief, 245 relief, for adjustment of status.

What we are saying here is cur Respondent has the same relief, no difference, no other eligibility, no 245 relief… 244 relief, that she had it and that the Petitioner said she did net have it then because she did not have her seven years, but she has got it now.

So whether you look at the first view or the second view of it she has eligibility now.

John Paul Stevens:

Let me go back.

You say that the congressional remedy is no longer available.

How long has it been true that there really is no congressional remedy because as I understand the background of this statute its purpose was to turn over a group of decisions to the Attorney General that Congress had previously been making.

Did they immediately change their rules so that there no longer was a remedy as you say there is not now?

Bert D. Greenberg:

No, Your Honor.

With respect to private bills if memory serves it was some time in the late 1970’s that Rule 6 was introduced in the House requiring members of the Judiciary Committee and the Immigration Subcommittee to decide whether or not private bills should be allowed to be introduced on the floor.

As a result of that, very few private bills ever get through the House.

In the Senate there is no limitation on introducing private bills; however, the few that I have seen in the Senate have been called up and voted on very quickly.

One was within go days of introduction whereas prior to that prior to the Immigration Service’s complaints about private bills was they would sit for two sessions of Congress as more or less a courtesy to the Congressman or Senator that introduced it.

But that is not the case any more.

John Paul Stevens:

I see.

Bert D. Greenberg:

I do not think many practicing immigration lawyers rely on private bills to assist them with their clients.

John Paul Stevens:

The thought that was running through my mind is that maybe a strict construction would be very appropriate if there is a congressional remedy as there had been in the past.

If there is no longer a congressional remedy available perhaps the statute should be construed a little differently.

That is the problem I am wrestling with.

Bert D. Greenberg:

I understand.

Lewis F. Powell, Jr.:

May I ask whether there was a quota on immigration from Thailand at the time of the case?

Bert D. Greenberg:

Yes, there was, Your Honor.

Lewis F. Powell, Jr.:

Where there Thai citizens awaiting their turn to come into the United States under that quota?

Bert D. Greenberg:

With these particular people, the Respondent here, no.

Lewis F. Powell, Jr.:

From Thailand, not these people.

Bert D. Greenberg:

Yes, Your Honor.

Lewis F. Powell, Jr.:

But there were Thai people awaiting their turn to come into the United States lawfully.

Bert D. Greenberg:

That is correct, Your Honor.

Lewis F. Powell, Jr.:

Was it not the intention of Congress to protect the interest of people who were operating in accordance with the laws of the United States primarily rather than people who were deportable who had disobeyed our laws?

Bert D. Greenberg:

I believe so, Your Honor.

My last point is simply that the Petitioner herein in their brief and in their argument is seeking to do basically what they are accusing Respondent of of collapsing two of the three elements of Section 244 into each other in effect saying that if the Immigration judge finds hardship do not worry so much about seven years and do not worry so much about good moral character.

Respondent’s position is that is not the situation at all that the Respondent believes that each factor of Section 244 shall be independently determined by the Immigration judge.

In fact, in this case the Immigration judge first made a finding on hardship before he even looked at the issue of seven years’ residence or good moral character.

In summation, we believe that the standards set forth by the Court of Appeals in the Ninth Circuit describing a totality of circumstances test for adjudicating Section 244 is fair, and we do believe that the case is moot at this point and there is a proper relief before the Board of Immigration Appeals with the pending motion.

Thank you.

Warren E. Burger:

Very well, Mr. Greenberg.

Do you have anything further, Mr. Schulder?

Elliott Schulder:

No, Your Honor.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.