A-10809731Board of Immigration Appeals Executive Office for Immigration Review U.S. Department of Justice
Decided by Regional Commissioner April 21, 1958 Approved by Assistant Commissioner
Residence for naturalization — Section 316 (b) of 1952 act — Benefits not available where absence breaks continuity of one year physical presence requirement.
Any absence, no matter how short, breaks the continuity of the one year physical presence requirement in section 316 (b) of the Immigration and Nationality Act. One day trip to Canada prevents applicant from establishing uninterrupted period of physical presence, rendering him ineligible for benefits of section 316 (b).
APPLICATION:
To preserve residence for naturalization purposes under section 316 (b) of the Immigration and Nationality Act.
BEFORE THE REGIONAL COMMISSIONER
BEFORE THE REGIONAL COMMISSIONER
Discussion: This case is on appeal from the decision of the District Director, Chicago, Illinois, dated February 11, 1958, denying the application of A—- A—- to preserve residence abroad for naturalization purposes, for the reason that applicant had not been physically present and residing in the United States for an uninterrupted period of a least one year after being lawfully admitted for permanent residence.
Applicant was lawfully admitted to the United States for permanent residence on January 19, 1957. In the summer of 1957 he made a one-day trip to Canada. He is presently abroad, employed by the 37th Engineer Battalion, United States Army, as a tailor. Section 316 (b) of the Immigration and Nationality Act requires an alien, if he wishes to preserve residence abroad for naturalization purposes to have “been physically present and residing in the United States, after being lawfully admitted for permanent residence, for an uninterrupted period of at least one year.” The words “for an uninterrupted period” of at least one year are new ones having been introduced for the first time in section 316 (b) of the Immigration and Nationality Act. The predecessor section, namely, section 307 (b) of the Nationality Act of 1940, did not use the words “uninterrupted
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period” but merely required residence in the United States for at least one year. Pursuant to the present provision of law, Allegation 3 of Form N-470, the application to preserve residence for naturalization purposes, requires an applicant to state the period that he has resided in and has been physically present in the United States for an uninterrupted period since lawful entry. The question raised in this case is whether an absence from the United States on a visit to Canada for one day prevents an applicant from establishing an uninterrupted period of physical presence of one year.
While there have been no court decisions nor printed administrative decisions relating to this phase of law, a similar situation has been presented in connection with the granting of suspension of deportation under section 244 of the Immigration and Nationality Act. Under this section an applicant desiring such relief must establish that he has been “physically present in the United States for a continuous period” of not less than certain specified years immediately preceding the date of his application. In Matter of P—-, A-3063410, 5 IN Dec. 220, 224 (1953), the Board of Immigration Appeals, in commenting whether an applicant had established physical presence for the continuous period, made the following comment with respect to an absence from the United States for 3 days:
“* * * We see no escape from construing the language `physically present in the United States’ as meaning other than exactly what it says; to wit: that the alien must be physically present in the United States `continuously’ for the period specified in the statute. In other words, we feel that the statute makes it clear that to qualify for suspension the alien must have been in the United States without any absence, no matter how brief, for the continuous period specified, in this instance, 5 years. * * *”
It was held by the Board that the applicant in that case could not fulfill the physical presence requirement of the statute. While this case was reversed on another ground in Savoretti v United States ex rel. Pincus, 214 F. (2d) 314 (C.A. 5, 1954, affirming 114 F. Supp. 574), the comments of the Board are still the prevailing view. A similar view was held to be applicable with respect to short trips to Mexico (Matter of S—- R—-,
A-1922409, 6 IN Dec. 405, 409 (B.I.A., 1954)). Likewise, this view has been followed in connection with applications for suspension in which absences from the United States as seamen are involved (Matter of Z—- A—- Z—-, T-303081, 5 IN Dec. 298 (B.I.A., 1953); Montalban v. Brownell, 157 F. Supp. 391 (D.C., 1957)).
Thus, in the section of the statute relating to suspension where applicant is required to establish physical presence for a continuous period of specified years, it has been held that a short absence from the United States breaks the continuity of physical presence in the
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United States. In section 316 (b), the section under consideration, a stronger word than continuous is used. The section requires physical presence in the United States for an “uninterrupted” period of at least one year. Furthermore, the use of the word “uninterrupted” first appeared in the present statute indicating that a change was desired from the former requirement of residence in the United States for one year. It follows, therefore, that an absence from the United States, no matter how short and even to Canada, breaks the continuity of the one-year physical presence requirement for the purpose of obtaining the benefits of section 316 (b). Consequently, applicant has not established his eligibility.
There is no provision of law nor regulation permitting the waiving of the provisions of section 316 (b). It is, therefore, concluded that the action of the district director in denying the application was proper and his decision will be affirmed.
Order: It is ordered that the decision of the District Director, denying the application of A—- A—- to preserve residence for naturalization purposes, be affirmed.
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