In The

Supreme Court of the United States




Decided January 10, 1984

Justice O’Connor, For the Court

Topic: Civil Rights*Court vote: 9–0
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Citation: 464 U.S. 183 Docket: 82–91Audio: Listen to this case's oral arguments at Oyez

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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.


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), [ Footnote 1 ] 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 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 reentry three months later. [ Footnote 2 ] 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 Tha[i] 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" issue. [ Footnote 3 ] 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, [ Footnote 4 ] the court remanded for further proceedings on the "continuous physical presence" issue. [ Footnote 5 ]

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. [ Footnote 6 ]


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, 456 U. S. 68 (1982), quoting Reiter v. Sonotone Corp., 442 U. S. 330, 442 U. S. 337 (1979), and Richards v. United States, 369 U. S. 1, 369 U. S. 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

exception[s] to the requirement of seven years of 'continuous physica[l] 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, former § 301(b) of the Act, which required two years of "continuou[s] physica[l] presen[ce]" for maintenance of status as a United States national or citizen, provided that

absence from the United States of less than sixty days in the aggregate during the period for which continuous physical presence in the United States is required shall not break the continuity of such physical presence.

86 Stat. 1289, repealing 71 Stat. 644 (12-month aggregate absence does not break continuity of physical presence). The deliberate omission of a similar moderating provision in § 244(a)(1) compels the conclusion that Congress meant this "continuous physical presence" requirement to be administered as written.

Indeed, the evolution of the deportation provision itself shows that Congress knew how to distinguish between actual "continuous physical presence" and some irreducible minimum of "nonintermittent" presence. Prior to 1940, the Attorney General had no discretion in ordering deportation, and an alien's sole remedy was to obtain a private bill from Congress. See INS v. Jong Ha Wang, 450 U. S. 139, 450 U. S. 140, and n. 1 (1981). In 1940, Congress authorized the Attorney General to suspend deportation of aliens of good moral character whose deportation "would result in serious economic detriment" to the aliens or their families. See 54 Stat. 672. Then, in 1948, Congress amended the statute again to make the suspension process available to aliens who "resided continuously in the United States for seven years or more" and who could show good moral character for the preceding five years, regardless of family ties. 62 Stat. 1206. Finally, in 1952, "in an attempt to discontinue lax practices and discourage abuses," Congress replaced the 7-year "continuous residence" requirement with the current 7-year "continuous physical presence" requirement. H.R.Rep. No. 1365, 82d Cong., 2d Sess., 31 (1952). It made the criteria for suspension of deportation more stringent both to restrict the opportunity for discretionary action, see ibid., and to exclude

aliens [who] are deliberately flouting our immigration laws by the processes of gaining admission into the United States illegally or ostensibly as nonimmigrants, but with the intention of establishing themselves in a situation in which they may subsequently have access to some administrative remedy to adjust their status to that of permanent residents.

S.Rep. No. 1137, 82d Cong., 2d Sess., pt. 1, p. 25 (1952). [ Footnote 7 ] Had Congress been concerned only with "nonintermittent" presence or with the mere maintenance of a domicile or general abode, it could have retained the "continuous residence" requirement. Instead, Congress expressly opted for the 7-year "continuous physical presence" requirement.

The statutory switch from "continuous residence" to "continuous physical presence" was no simple accident of draftsmanship. Congress broadened the class of aliens eligible for admission to citizenship by requiring only five years' "continuous residence" and "physical presence" for at least half the period of residency. Concomitantly, it made § 244(a)(1) more restrictive; suspensions of deportations are "grossly unfair to aliens who await abroad their turn on quota waiting lists," [ Footnote 8 ] and Congress wanted to limit the number of aliens allowed to remain through discretionary action. [ Footnote 9 ] The citizenship and suspension of deportation provisions are interrelated parts of Congress' comprehensive scheme for admitting aliens into this country. We do justice to this scheme only by applying the "plain meaning of [§ 244(a)(1)], however severe the consequences." Jay v. Boyd, 351 U. S. 345, 351 U. S. 357 (1956). The Court of Appeals' inquiry into whether the hardship to be suffered upon deportation has been diminished by the alien's absence fails to do so.


Respondent contends that we should approve the Court of Appeals' "generous" and "liberal" construction of the "continuous physical presence" requirement notwithstanding the statute's plain language and history. Brief for Respondent 10 (quoting Kamheangpatiyooth v. INS, 597 F.2d at 1256, and n. 3). She argues that the Court of Appeals' construction is in keeping both with our decision in Rosenberg v. Fleuti, 374 U. S. 449 (1963), and with the equitable and ameliorative nature of the suspension remedy. We disagree.


In Fleuti, this Court held that a lawful permanent resident alien's return to the United States after an afternoon trip to Mexico did not constitute an "entry" within the meaning of § 101(a)(13) of the Act. [ Footnote 10 ] We construed the term "intended" in the statutory exception to the definition of "entry" to mean an "intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence." Id. at 374 U. S. 462. We interpreted the statute not to allow a lawful resident alien like Fleuti to be excluded "for a condition for which he could not have been deported had he remained in the country," id. at 374 U. S. 460, because it would subject the alien to "unsuspected risks and unintended consequences of... wholly innocent action." Id. at 374 U. S. 462. Since Fleuti had gone to Mexico, without travel documents, for only a few hours, we remanded for a determination whether his departure had been "innocent, casual, and brief," and so not "meaningfully interruptive" of his permanent residence. Id. at 374 U. S. 461, 374 U. S. 462.

Fleuti is essentially irrelevant to the adjudication of respondent's § 244(a)(1) suspension application. Fleuti dealt with a statutory exception enacted precisely to ameliorate the harsh effects of prior judicial construction of the "entry" doctrine. See id. at 374 U. S. 457 -462. By contrast, this case deals with a threshold requirement added to the statute specifically to limit the discretionary availability of the suspension remedy. See supra at 464 U. S. 190 -191. Thus, whereas a flexible approach to statutory construction was consistent with the congressional purpose underlying § 101(a)(13), such an approach would not be consistent with the congressional purpose underlying the "continuous physical presence" requirement. Ibid.

In Fleuti, the Court believed that Congress had not considered the "meaningless and irrational hazards" that a strict application of the "entry" provision could create. Thus, it inferred that Congress would not have approved of the otherwise harsh consequences that would have resulted to Fleuti. See 374 U.S. at 374 U. S. 460 -462. Here, by contrast, we have every reason to believe that Congress considered the harsh consequences of its actions. Congress expressly provided a mechanism for factoring "extreme hardship" into suspension of deportation decisions. We would have to ignore the clear congressional mandate and the plain meaning of the statute to find that Fleuti is applicable to the determination whether an otherwise deportable alien has been "physically present in the United States for a continuous period of not less than seven years...." 8 U.S.C. § 1254(a)(1). [ Footnote 11 ] We refuse to do so.

We also note, though it is not essential to our decision, that Fleuti involved the departure of a lawful resident alien who, but for his departure, otherwise had a statutory right to remain in this country. This case, by contrast, deals with the departure of an unlawful alien who could have been deported even had she remained in this country. Such an alien has no basis for expecting the Government to permit her to remain in the United States or to readmit her upon her return from foreign soil. Thus, respondent simply is not being excluded "for a condition for which [she] could not have been deported had [she] remained in the country...." 374 U.S. at 374 U. S. 460. [ Footnote 12 ]


Respondent further suggests that we approve the Court of Appeals' articulation of the "continuous physical presence" standard -that an absence is "meaningfully interruptive" only when it increases the risk and reduces the hardship of deportation -as consistent with the ameliorative purpose of, and the discretion of the Attorney General to grant, the suspension remedy. Brief for Respondent 6-11. Respondent's suggestion is without merit.

Although § 244(a)(1) serves a remedial purpose, the liberal interpretation respondent suggests would collapse § 244 (a)(1)'s "continuous physical presence" requirement into its "extreme hardship" requirement and read the former out of the Act. The language and history of that section suggest that "continuous physical presence" and "extreme hardship" are separate preconditions for a suspension of deportation. See n 9, supra. It strains the statutory language to construe the "continuous physical presence" requirement as requiring yet a further assessment of hardship.

It is also clear that Congress intended strict threshold criteria to be met before the Attorney General could exercise his discretion to suspend deportation proceedings. Congress drafted § 244(a)(1)'s provisions specifically to restrict the opportunity for discretionary administrative action. Respondent's suggestion that we construe the Act to broaden the Attorney General's discretion is fundamentally inconsistent with this intent. In INS v. Jong Ha Wang, we rejected a relaxed standard for evaluating the "extreme hardship" requirement as impermissibly shifting discretionary authority from INS to the courts. 450 U.S. at 450 U. S. 146. Respondent's suggestion that we construe the Act to broaden the Attorney General's discretion analogously would shift authority to relax the "continuous physical presence" requirement from Congress to INS and, eventually, as is evident from the experience in this case, to the courts. We must therefore reject respondent's suggestion as impermissible in our tripartite scheme of government. [ Footnote 13 ] Congress designs the immigration laws, and it is up to Congress to temper the laws' rigidity if it so desires.


The Court of Appeals' approach ignores the plain meaning of § 244(a)(1) and extends eligibility to aliens whom Congress clearly did not intend to be eligible for suspension of deportation. Congress meant what it said: otherwise deportable aliens must show that they have been physically present in the United States for a continuous period of seven years before they are eligible for suspension of deportation. The judgment of the Court of Appeals therefore is



[ Footnote 1 ]

The Attorney General is authorized to delegate his powers under the Act. 8 U.S.C. § 1103. Accordingly, 8 CFR § 2.1 (1983) delegates the Attorney General's power to the Commissioner of Immigration and Naturalization, and permits the Commissioner to redelegate his authority through appropriate regulations. The Commissioner has delegated the power to consider § 244 applications to special inquiry officers, whose decisions are subject to review by the Board of Immigration Appeals (BIA), 8 CFR §§ 242.8, 242.21 (1983).

[ Footnote 2 ]

App. 17-24. About one month prior to her departure, respondent obtained a new Thai passport. Id. at 21-22. However, when she departed for Thailand, respondent did not have a nonimmigrant visa allowing her to reenter this country. After her arrival in Thailand, respondent went to the United States Consul and obtained a nonimmigrant visa as the wife of a foreign student. Although respondent was aware that her husband's student visa had expired more than two years earlier, she failed to inform the consular officer of that fact. Id. at 23-24.

[ Footnote 3 ]

BIA reversed the Immigration Judge's decision that respondent's false testimony at her deportation hearing did not bar her from establishing her good moral character. App. to Pet. for Cert. 18a-19a. BIA also reversed the Immigration Judge's conclusion that respondent's husband was eligible for suspension of deportation, ruling that he had failed to establish extreme hardship either to himself or his epileptic daughter, id. at 19a-21a.

[ Footnote 4 ]

The "totality of the circumstances" approach was first articulated in Kamheangpatiyooth, which reaffirmed the Court of Appeals' earlier ruling in Wadman v. INS, 329 F.2d 812 (CA9 1964). See 597 F.2d at 1256. Wadman held that the principles established by this Court in Rosenberg v. Fleuti, 374 U. S. 449 (1963) (interpreting whether a lawful resident alien had made an "entry" within the meaning of 8 U.S.C. § 1101(a)(13)), should also guide the determination whether an intervening absence interrupts the continuity of physical presence for purposes of § 244(a)(1). 329 F.2d at 816. Kamheangpatiyooth concluded, however, that the principles enunciated in Fleuti were only "evidentiary" on the issue of whether a lawful resident's departure meaningfully interrupts his continuous physical presence under § 244(a)(1). 597 F.2d at 1257.

[ Footnote 5 ]

The Court of Appeals also overturned BIA's finding that respondent was not of good moral character, and remanded for reconsideration of that issue. 673 F.2d at 1018-1020. In addition, it reversed BIA's finding that respondent's husband had failed to prove that extreme hardship would result from his deportation. Id. at 1016-1017. Petitioner questions both rulings, but did not seek certiorari review of them. See Brief for Petitioner 8, and n. 5. We accordingly express no opinion on these issues.

[ Footnote 6 ]

Respondent contends that the case is moot. Brief for Respondent 1-6. She asserts that, since her return from Thailand in April, 1974, she has been physically present in the United States for a continuous period of more than seven years. Accordingly, respondent claims that, even if the Court were to reverse, she could obtain suspension of deportation.

Respondent's mootness argument is without merit. Although respondent has filed a motion with BIA asking that her deportation proceeding be reopened, granting of the motion is entirely within BIA's discretion. See 8 CFR § 3.2 (1983); INS v. Jong Ha Wang, 450 U. S. 139, 450 U. S. 143 -144, and n. 5 (1981). Moreover, even if BIA does reopen the proceeding, there is no basis in the present record for concluding that BIA will determine that respondent is eligible for suspension of deportation. Counsel's unsupported assertions in respondent's brief do not establish that respondent could satisfy the "continuous physical presence" requirement. In short, we have no basis for concluding that the case is or will become moot.

[ Footnote 7 ]

See also S.Rep. No. 1515, 81st Cong., 2d Sess., 602 (1950) (criticism of the administrative interpretation of the 7-year residence provision).

[ Footnote 8 ]

H.R.Rep. No. 1365, 82d Cong., 2d Sess., 63 (1952).

[ Footnote 9 ]

The 1952 Act also required an alien to show "exceptional and extremely unusual hardship" to qualify for suspension of deportation. 66 Stat. 214. In 1962, Congress amended § 244(a)(1) to require that the alien show deportation would result in "extreme hardship." 76 Stat. 1248. It retained the literal "continuous physical presence" requirement word-for-word, although it added an express exception in § 244(b) for aliens who had served at least 24 months' active service in the Armed Forces.

JUSTICE BRENNAN cites various statements, especially those of Senator Keating, in the legislative history of the 1962 amendments to support his belief that the Act should not be literally interpreted. See post at 464 U. S. 199 -205. These statements, of course, relate not to the "continuous physical presence" requirement, which Congress retained as a strict condition precedent to deportation suspension, but to the "extreme hardship" requirement. As Senator Keating himself explained:

Section 244 as amended would permit aliens who have been physically present in the United States for 7 years, or, in more serious cases, for 10 years, to apply to the Attorney General for a suspension of deportation as under present section 244. The alien would have to show a specified degree of hardship.... The conference version of section 244... has continuing future applicability to any alien who can satisfy either the 7or the 10-year physical presence requirement in addition to the other criteria for suspension of deportation.

108 Cong.Rec. 23448-23449 (1962).

[ Footnote 10 ]

8 U.S.C. § 1101(a)(13). That provision defines an "entry" as

any coming of an alien into the United States... except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him....

The question of an "entry" may properly be determined in an exclusion, as well as a deportation, hearing. See Landon v. Plasencia, 459 U. S. 21 (1982).

[ Footnote 11 ]

In INS v. Jong Ha Wang, this Court observed that a narrow interpretation of the term "extreme hardship" was "consistent with the extreme hardship' language, which itself indicates the exceptional nature of the suspension remedy." 450 U.S. at 450 U. S. 145. Similarly, we find only the plain meaning of the "continuous physical presence" requirement to be consistent with the exceptional nature of the suspension remedy.

[ Footnote 12 ]

The other Courts of Appeals, even though uncertain about Fleuti's application to § 244(a)(1), have routinely rejected suspension of deportation applications of unlawful aliens who literally have not been physically present in the United States for a continuous period of seven years. See, e.g., Fidalgo/Velez v. INS, 697 F.2d 1026 (CA11 1983); McColvin v. INS, 648 F.2d 935 (CA4 1981); Heitland v. INS, 551 F.2d 495 (CA2), cert. denied, 434 U.S. 819 (1977).

[ Footnote 13 ]

The Solicitor General admits that, prior to

the Ninth Circuit's decision in 1964 in Wadman v. INS, 329 F.2d 812, the lower courts and the Board of Immigration Appeals generally applied a strict, literal interpretation of the 'continuous physical presence' language in Section 244(a)(1) and held ineligible for suspension of deportation any alien who was absent from the United States during the seven-year period without regard to the circumstances surrounding the absence.

Brief for Petitioner 11-12 (citing cases). Our decision today frees INS from the strictures of Wadman and interprets the language as Congress has written it. Contrary to JUSTICE BRENNAN's suggestion, see post at 464 U. S. 197, neither we nor INS have authority to create " room for flexibility in applying'" § 244(a)(1) when the language chosen by Congress and its purpose are otherwise.

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