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?

Media for Immigration and Naturalization Service v. Phinpathya

Audio Transcription for Oral Argument - October 03, 1983 in Immigration and Naturalization Service v. Phinpathya

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.