IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER, v. PADUNGSRI PHINPATHYA No. 82-91 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the Immigration and Naturalization Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a writ of certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-13a) is reported at 673 F.2d 1013. The decision of the Board of Immigration Appeals (App. B, infra, 14a-21a) is not reported. The decision of the immigration judge (App. C, infra, 22a-31a) is also not reported. JURISDICTION The judgment of the court of appeals was entered on October 1, 1981. A petition for rehearing was denied on April 5, 1982 (App. D, infra, 32a). Justice Rehnquist extended the time for filing a petition for a writ of certiorari to and including July 16, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED 8 U.S.C. 1254(a)(1) provides: As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and -- (1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; 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, and proves 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 * * * . QUESTION PRESENTED Whether an alien's absence from the United States may be considered meaningfully interruptive of his "continuous physical presence" in this country, for the purpose of determining eligibility for suspension of deportation pursuant to 8 U.S.C. 1254(a)(1), if the hardships associated with the alien's deportation would be as severe if the absence had not occurred. STATEMENT Respondent is a native and citizen of Thailand who first entered the United States as a nonimmigrant student in October 1969. Respondent's husband, also a native and citizen of Thailand, entered this country in August 1968. Both respondent and her husband were authorized to remain until July 25, 1971, but they remained beyond that date without securing the permission of the immigration authorities (App. A, infra, 1a). In January 1977, the Immigration and Naturalization Service charged respondent and her husband with deportability under Section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as nonimmigrants who had remained in this country beyond the time authorized in their visas. At the deportation hearing, both respondent and her husband conceded deportability and applied for suspension of deportation pursuant to Section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1) (App. A, infra, 2a). That section authorizes the Attorney General, in his discretion, to suspend deportation of a deportable alien. In order to be eligible for this discretionary relief, an alien must show that (1) he has been physically present in the United States for a continuous period of at least seven years immediately preceding the application for suspension of deportation; (2) he has been a person of good moral character during that seven-year period; and (3) deportation would result in extreme hardship to the alien or to his spouse, parent or child who is a United States citizen or lawful permanent resident. The immigration judge granted suspension of deportation as to respondent's husband, but found respondent ineligible for suspension on the ground that she had failed to meet the seven year "continuous physical presence" requirement of the statute (App. C, infra, 22a-31a). The evidence before the immigration judge showed that respondent had been absent from this country for a period of approximately three months, from January 1974 to April 18, 1974, when she traveled with her two children to visit her mother in Thailand (id. at 28a; R. 78). /1/ About one month prior to her departure, respondent obtained a new Thai passport; however, respondent did not have a nonimmigrant visa allowing her to reenter this country when she departed for Thailand. Accordingly, after her arrival in Thailand, respondent went to the United States Consul and obtained a nonimmigrant visa as the wife of a foreign student in the United States. Although respondent was aware that her husband's student visa had expired more than two years earlier, in 1971, she failed to inform the consular officer of that fact (App. C, infra, 28a; R. 83-87). On the basis of this evidence, the immigration judge concluded that respondent's absence from the United States was neither brief, innocent, nor casual (App. C, infra, 28a): 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 Thai() passport, as 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). * * * Accordingly, the judge concluded that respondent's departure was meaningfully interruptive of her continuous physical presence in the United States and that she was ineligible for suspension of deportation (id. at 28a-29a). /2/ The Board of Immigration Appeals affirmed the immigration judge's decision on the continuous physical presence issue (App. B, infra, 14a-21a). /3/ The Board observed that when respondent traveled to Thailand in January 1974, "she had already remained beyond the time authorized * * * (and) was only able to obtain a visa to return by misrepresenting her status as the spouse of a student, knowing full-well that she had no right to claim that status" (id. at 17a). Because respondent's departure substantially increased the likelihood that her illegal status would be discovered and that she would either be excluded or deported once her true status was ascertained, the BIA concluded that respondent's departure was a significant interruption of her physical presence in the United States (id. at 17a-18a). The court of appeals reversed (App. A, infra, 1a-13a). Relying on its decision in Kamheangpatiyooth v. INS, 597 F.2d 1253 (9th Cir. 1979), the court concluded that the Board of Immigration Appeals had applied an erroneous legal standard in reaching its determination that respondent failed to meet the "continuous physical presence" requirement of Section 244(a)(1) of the Act (App. A, infra, 8a). /4/ In Kamheangpatiyooth, the court reaffirmed its earlier ruling in Wadman v. INS, 329 F.2d 812 (9th Cir. 1964), that the principles established by this Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963), to decide whether a departure by a lawful resident alien was "intended" 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 (8 U.S.C. 1254(a)(1))." 597 F.2d at 1256. Although this Court in Fleuti had pointed to several factors, including the duration of the alien's absence, the purpose of the visit and whether travel documents were obtained, as being relevant in determining whether a departure was meaningfully interruptive of an alien's permanent residence (374 U.S. at 462), the court in Kamheangpatiyooth concluded that "these factors are only evidentiary on the issue under section 244(a)(1) of whether an absence reduced the significance of the whole seven-year period as reflective of the hardship and unexpectedness of exposure to expulsion." 597 F.2d at 1257 (footnote omitted). In the court of appeals' view (ibid.): An absence cannot be significant or meaningfully interruptive of the whole period if indications are that the hardship of deportation to the alien would be equally severe had the absence not occurred, and that no significant increase in the likelihood of deportation could reasonably have been expected to flow from the manner and circumstances surrounding the absence. In the instant case, the court of appeals held that the BIA erred in concluding that respondent's departure was meaningfully interruptive merely because she thereby increased the risk of deportation (App. A, infra, 7a-8a). /5/ Instead, the court concluded that under the Kamheangpatiyooth test, a departure that increases an alien's risk of deportation cannot be meaningfully interruptive unless it also reduces the severity of the hardships that would result from deportation; moreover, according to the court, even if both factors are present, it does not necessarily follow that the departure must be regarded as having meaningfully interrupted the alien's continuous physical presence in the United States (App. A, infra, 8a). REASONS FOR GRANTING THE PETITION This case presents an important and recurring question of immigration law concerning the proper standard for determining whether a deportable alien has satisfied one of the eligibility requirements for the exceptional remedy of suspension of deportation pursuant to Section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1254(a)(1). The court below held that the seven year "continuous physical presence" requirement of Section 244(a)(1) is satisfied in the case of an alien whose illegal overstay in this country is interrupted by a three month trip abroad and who misrepresents her status in order to secure reentry into the United States. It is our submission that Congress could not conceivably have intended this result. The court below achieved this result, moreover, by application of a test that finds no support in the language, structure structure or history of the Act, all of which suggest that Congress intended that the "continuous physical presence" requirement be given a narrow construction. Although the courts of appeals have recognized an exception to the "continuous physical presence" requirement in the case of an alien whose absence is not "meaningfully interruptive" of his physical presence in this country under the test established in Rosenberg v. Fleuti, supra, the decision below effectively erodes that test by concluding that a departure cannot be meaningfully interruptive if it does not reduce the hardships that would flow from the alien's deportation. No other court has construed the Fleuti test in this manner. The court of appeals' decision will frustrate the government's efforts to deport aliens, such as respondent, who have repeatedly flouted the Nation's immigration laws. Furthermore, because the decision below seriously undermines this Court's Fleuti test, the decision will have substantial repercussions beyond the suspension of deportation context. If a lengthy departure such as respondent's is not meaningfully interruptive of an alien's continuous physical presence for purposes of determining eligibility for suspension of deportation, then a similar departure presumably would not be regarded as a meaningful interruption of an alien's lawful residence for purposes of determining, under 8 U.S.C. 1101(a)(13), whether a lawful resident alien had attempted or made an "entry" that would subject him to exclusion or deportation under the immigration laws. We submit that review by this Court is warranted to correct the manifest error of the court of appeals. 1. The court of appeals in this case, relying on its earlier decision in Kamheangpatiyooth v. INS, supra, has concluded that an alien's absence from the United States during the seven year period immediately preceding his application for suspension of deportation cannot be regarded as breaking the continuity of the alien's physical presence in this country unless the hardships of deportation are made less severe as a result of the absence (App. A, infra, 8a). This construction of the statute unjustifiably commingles two separate statutory elements, "extreme hardship" and "continuous physical presence." Nothing in the language or history of the Act supports this strained interpretation. As Justice Clark remarked in his dissent in Rosenberg v. Fleuti, supra, 374 U.S. at 463 (emphasis in original), "statutory construction' means * * * that the Court can construe statutes but not that it can construct them. The latter function is reserved to the Congress * * * ." It is apparent that the court of appeals failed to heed this admonition. The decision below, like that in Kamheangpatiyooth, is based on the erroneous assumption that Congress intended Section 244(a)(1) "to be generously construed." 597 F.2d at 1256. Our reading of the language, structure and history of the statute points in precisely the opposite direction. In Section 244(a)(1) Congress provided that an alien applying for the extraordinary relief of suspension of deportation must have been "physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application * * * ." 8 U.S.C. 1254(a)(1). The language of the statute reflects a congressional intent that the "continuous physical presence" requirement be read narrowly. On its face, the statute "contains no exception to the requirement of seven years of 'continuous physical presence' in the United States to be eligible for suspension of deportation." McColvin v. INS, 648 F.2d 935, 937 (4th Cir. 1981). Moreover, in Jay v. Boyd, 351 U.S. 345, 357 (1956), this Court rejected the suggestion that it should resolve all doubts in favor of the applicant in construing the suspension of deportation statute; instead, the Court stated, "we must adopt the plain meaning of a statute, however severe the consequences." More recently, in INS v. Jong Ha Wang, 450 U.S. 139, 145 (1981), this Court observed that a narrow interpretation of the term "extreme hardship" in Section 244(a)(1) "is consistent with the 'extreme hardship' language, which itself indicates the exceptional nature of the suspension remedy." In addition, comparison of Section 244(a)(1) with other contemporaneously enacted provisions of the Immigration and Nationality Act reinforces the view that Congress intended the "continuous physical presence" requirement in Section 244(a)(1) to be construed strictly. Thus, former Section 301(b) of the Act, 8 U.S.C. 1401(b), provided that certain individuals shall lose their status as United States nationals and citizens unless they "come to the United States and (are) continuously physically present there for a period of not less than two years" between 14 and 28 years of age. Section 301(b) further provided that "(i)n the administration of this subsection 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." The failure to include a similar provision in Section 244(a)(1) suggests that Congress meant the "continuous physical presence" requirement of that section to be given a narrow, if not a literal, interpretation. /6/ See Fedorenko v. United States, 449 U.S. 490, 512 (1981). The legislative history of Section 244(a)(1) also reflects Congress' intention that the "continuous physical presence" requirement "be applied in a rigorous manner." McColvin v. INS, supra, 648 F.2d at 938. The predecessor to Section 244(a)(1) was enacted in 1948 and required only that an alien have "resided continously in the United States for seven years or more" and show good moral character for the preceding five years. Act of July 1, 1948, Pub. L. No. 863, 62 Stat. 1206. In its 1950 review of the Nation's immigration laws, the Senate Committee on the Judiciary noted that INS field officers had "criticized the administrative interpretation of the 7-year residence provision of the law. These provisions have been held applicable to an alien who has a total of 7 years' residence in the United States, although the alien has been out of the United States for as long as 2 years during the last 7 years." S. Rep. No. 1515, 81st Cong., 2d Sess. 602 (1950). Two years later, "in an attempt to discontinue lax practices and discourage abuses" (H.R. Rep. No. 1365, 82d Cong., 2d Sess. 31 (1952)), Congress amended the suspension of deportation statute to require seven years' continuous physical presence in the United States. /7/ It thus is apparent that Congress intended the "continuous physical presence" requirement to be strictly construed. The court of appeals' overly generous interpretation of the statute is directly contrary to this intent. 2. Until the Ninth Circuit's decision in 1964 in Wadman v. INS, supra, 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. See, e.g., Arellano-Flores v. Hoy, 262 F.2d 667, 668 (9th Cir. 1958); United States ex rel. Bruno v. Sweet, 133 F. Supp. 3, 6-7 (W.D. Mo. 1955), aff'd, 235 F.2d 801 (8th Cir. 1956); Matter of Jacobson, 10 I. & N. Dec. 782 (B.I.A. 1964); Matter of Wong, 10 I. & N. Dec. 513 (B.I.A. 1964). But see McLeod v. Peterson, 283 F.2d 180, 185-187 (3d Cir. 1960). In Wadman, however, the court held that the standards of Rosenberg v. Fleuti, supra, should be applied to determine whether an alien's trip outside the United States was a sufficiently significant event as to break the continuity of the alien's physical presence in the United States. This Court in Fleuti had construed the term "intent" in the exception to the definition of "entry" in 8 U.S.C. 1101(a)(13) for unintended departures by lawful resident aliens "as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence." 374 U.S. at 462. The Court refused to hold that a lawful resident alien like Fleuti is subject "to exclusion for a condition for which he could not have been deported had he remained in the country" merely because he "steps across a border and, in effect, steps right back * * * ." Id. at 460. In light of Congress' unquestioned ameliorative intent in creating an exception to the strict "entry" doctrine, the Court concluded that "an innocent, casual, and brief excursion by a resident alien outside this country's borders may not have been 'intended' as a departure disruptive of his resident alien status * * * ." Id. at 462. The Court noted that among the factors to be considered in determining whether a departure was "meaningfully interruptive" are the duration of the alien's absence, the purpose of the trip and whether the alien had to procure travel documents in order to make the trip. The Ninth Circuit in Wadman concluded that "the term 'continuous' is no more subject to a hard and fast construction than is the term 'intended.' The question is whether the interruption, viewed in balance with its consequences, can be said to have been a significant one under the guides laid down in Fleuti." 329 F.2d at 816. Following the decision in Wadman, the courts of appeals and the BIA began to apply the Fleuti standards in determining whether an alien's trip abroad broke the continuity of his physical presence in the United States for purposes of Section 244(a)(1). See, e.g., Toon-Ming Wong v. INS, 363 F.2d 234, 235-236 (9th Cir. 1966); Barragan-Sanchez v. Rosenberg, 471 F.2d 758, 760-761 (9th Cir. 1972); Heitland v. INS, 551 F.2d 495, 500-504 (2d Cir.), cert. denied, 434 U.S. 819 (1977); Mamanee v. INS, 566 F.2d 1103, 1105 (9th Cir. 1977); Matter of Wong, 12 I. & N. Dec. 271 (B.I.A. 1967). We are not at all certain that application of the Fleuti standards in the suspension of deportation context is consistent with Congress' intent that the "continuous physical presence" requirement in Section 244(a)(1) be construed strictly. See pages 10-12, supra. However, the decision below, which ignores the standards established in Fleuti, is in direct conflict with the decisions of the other courts of appeals that have applied the Fleuti standards in this context. For example, in Heitland v. INS, supra, the Second Circuit relied on both Fleuti and Wadman in concluding that the aliens' six week trip abroad was meaningfully interruptive of their continuous physical presence in this country. The court noted that while the purpose of the trip, to visit Mr. Heitland's ailing sister was consistent with the intent to return and resume residence in the United States, other relevant factors militated strongly against a finding that the aliens' presence was continuous. 551 F.2d at 501-502. First, unlike Fleuti and Wadman, "who were at all times lawful permanent resident aliens prior to their departure, the Heitlands, once they remained beyond the six-month period for which they were admitted to stay in the United States, were at all times present in this country in violation of its laws." Id. at 502. Because the Heitlands had "no right at all to reside in this country at the time of their departure for their native land," their situation was markedly different from that of Fleuti and Wadman, "who had the right to reside in the United States, (and) would not have been subject to deportation if they had simply remained within this country's borders." Ibid. Second, the court noted that before embarking on their trip the Heitlands had to obtain passports and visas, thus evidencing "the deliberateness with which (the trip) was undertaken." Ibid. Finally, the court pointed out that "in using implicitly deceptive methods to secure re-entry in the United States, the Heitlands were engaged in a course of conduct directly contrary to a 'policy reflected in our immigration laws.'" Id. at 503, quoting Rosenberg v. Fleuti, supra, 374 U.S. at 462. The circumstances of this case are remarkably similar to those in Heitland. Here, respondent traveled abroad for three months but intended at all times to return to the United States. On the other hand, as in Heitland, respondent was illegally in the United States when she departed and, accordingly, she had no reasonable basis to expect the government to permit her to remain in this country or readmit her upon her return. Respondent obtained a passport prior to her departure, an event that should have caused her "to consider more fully the implications involved in (her) leaving the country." Rosenberg v. Fleuti, supra, 374 U.S. at 462. Finally, as both the immigration judge (App. C, infra, 28a) and the Board of Immigration Appeals (App. B, infra, 17a-18a) found, respondent knowingly misrepresented her status in order to secure reentry into the United States. Hence, the Second Circuit's statement in Heitland is equally applicable to respondent: The implicitly fraudulent circumstances of (her) return, when considered with the admitted illegality of (her) presence in the United States before (her) departure and the substantial period of time for which (she) absented (herself), do not present a picture of the type of hardship or injustice which Fleuti or its progeny were intended to remedy. This was a substantial and deliberate interruption of an illegal presence in the United States, accomplished through consciously misleading conduct. 551 F.2d at 503-504. The court below, however, disregarded the standards established in Fleuti and concluded that the BIA erred in finding respondent's absence meaningfully interruptive because "the hardships (of deportation) would be as severe if the absence had not occurred" (App. A, infra, 8a). This conclusion cannot be reconciled with the Second Circuit's construction of Section 244(a)(1) in Heitland. The decision below is also in conflict with the decision of the Fourth Circuit in McColvin v. INS, supra. In McColvin, the alien was found deportable for staying in this country beyond the time authorized and was granted the privilege of voluntary departure. The day after he departed the United States the alien reentered this country as a nonimmigrant visitor for business authorized to remain for a period not to exceed six months. In concluding that the alien's one-day absence was meaningfully interruptive, the court observed that "any roots that petitioner had established in the United States were put down with the knowledge that his stay in this country was temporary, and, therefore, any plans or expectations for the future that he might have developed could not have been legitimate ones." 648 F.2d at 939. In addition, the court noted that the alien left "with the knowledge that, if he did not depart voluntarily, he would be deported. If he left with the intention of returning, that intention was disingenuous." Ibid. Under the court of appeals' decision in this case and Kamheangpatiyooth, however, factors such as those adverted to by the Fourth Circuit in McColvin are "'only evidentiary' as to whether an absence breaks the continuity of seven years presence" (App. A, infra, 6a, quoting Kamheangpatiyooth v. INS, supra, 597 F.2d at 1257). McColvin's one-day departure was brief and undoubtedly did not affect the hardships he could be expected to suffer if he were later deported. Although McColvin may have increased the risk of deportation as a result of his absence, the court below has held that an absence cannot be considered meaningfully interruptive unless both factors -- an increase in the risk of deportation and a reduction in the severity of hardship -- are present (App. A, infra, 8a). In short, by holding that respondent's lengthy trip abroad and illegal reentry into the United States have no legal effect on her eligibility for suspension of deportation, the court of appeals has essentially read the "continuous physical presence" requirement out of the Act. /8/ This result conflicts with the decisions of the other courts of appeals that have considered the issue. 3. Finally, and perhaps most important, the decision below is inconsistent with this Court's decision in Rosenberg v. Fleuti, supra. Although Fleuti and this case involve different sections of the Immigration and Nationality Act, since Wadman the courts and the BIA have treated the two sections as analytically analogous. Under Fleuti, a lawful resident alien is regarded as having made an "entry" within the meaning of 8 U.S.C. 1101(a)(13) if his departure was meaningfully interruptive of his permanent residence in the United States. If a departure is meaningfully interruptive for purposes of invoking the entry doctrine, then it should also be meaningfully interruptive of an alien's "continuous physical presence" within the meaning of Section 244(a)(1). Under the standard adopted by the court of appeals, however, it would be virtually impossible to conclude in any given case that an alien has made a meaningful departure. Thus, in the Ninth Circuit at least, few if any lawful resident aliens who leave the United States will be excludable at the border pursuant to 8 U.S.C. 1225, 1226, because they will not be regarded as making an "entry" on their return. /9/ Accordingly, the decision below will seriously hamper the efforts of immigration authorities to keep inadmissible aliens out of this country. As the Fourth Circuit pointed out in McColvin v. INS, supra, 648 F.2d at 938, "(t)he criteria laid down in Kamheangpatiyooth clearly gave rise to a broader interpretation of 'continuous' than the Fleuti Court gave to 'intended.'" This result is ironic because the statute at issue in Fleuti was designed "to ameliorate the severe effects of the strict 'entry' doctrine" (374 U.S. at 462) with respect to lawful resident aliens, whereas the "continuous physical presence" requirement in Section 244(a)(1) was meant "to discontinue lax practices and discourage abuses" (H.R. Rep. No. 1365, supra, at 31) with respect to deportable aliens. In this case, the court of appeals nevertheless has held that deportable aliens who have illegally overstayed their visas and have used deceptive means to gain reentry following a substantial absence will be eligible for the "exceptional * * * remedy" (INS v. Jong Ha Wang, supra, 450 U.S. at 145) of suspension of deportation. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General D. LOWELL JENSEN Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General ELLIOTT SCHULDER Assistant to the Solicitor General JULY 1982 /1/ "R." refers to the certified administrative record. /2/ The immigration judge rejected the contention of the INS that respondent was barred from establishing her good moral character on the ground that she had given false testimony for the purpose of obtaining a benefit under the Immigration and Nationality Act. See 8 U.S.C. 1101(f)(6) (App. C, infra, 26a-27a). In addition, the judge found that respondent's daughter, who is a United States citizen, would suffer extreme hardship if respondent and her husband were deported (id. at 24a-26a). /3/ The Board reversed the immigration judge's decision with regard to the good moral character issue, finding that respondent gave false testimony at her deportation hearing (App. B, infra, 18a-19a). The Board 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 to his epileptic daughter (id. at 19a-21a). /4/ The court of appeals also overturned the BIA's determinations that respondent was not of good moral character and that respondent's husband did not prove that extreme hardship would result from deportation. On the good moral character issue, the court held that respondent's false statement on her application for suspension of deportation did not constitute false "testimony" within the meaning of 8 U.S.C. 1101(f)(6) and 1254(a)(1) (App. A, infra, 9a-11a). On the extreme hardship issue, the court held that the BIA abused its discretion in failing explicitly to consider the adverse effects of "the mere removal, and uprooting of (respondent's) epileptic child" from the United States (id. at 4a-5a). We believe that both of these rulings are incorrect. The court's discussion of extreme hardship, in particular, demonstrates the Ninth Circuit's continued inability or unwillingness to follow this Court's directive in INS v. Jong Ha Wang, 450 U.S. 139 (1981), that the Attorney General's "construction and application of (the extreme hardship) standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute." Id. at 144. See, e.g., Prapavat v. INS, 662 F.2d 561 (9th Cir. 1981); Mejia-Carrillo v. INS, 656 F.2d 520 (9th Cir. 1981); Perez v. INS, 643 F.2d 640 (9th Cir. 1981). At some point it may become necessary to ask this Court to review the Ninth Circuit's routine practice, despite Wang, of substituting its judgment for that of the BIA in suspension of deportation cases. /5/ In so holding, the court of appeals stated (App. A, infra, 1a-2a, 6a) that respondent's three month trip to Thailand in 1974 was for the purpose of visiting her sick mother. However, there is no evidence in the record of the administrative proceeding that respondent's mother was ill at the time of respondent's trip, much less that the illness occasioned respondent's visit to Thailand. /6/ Similarly, Section 316 of the Act, 8 U.S.C. 1427, which establishes a five year continuous "residence" requirement for admission to citizenship as well as a separate requirement of "physical presence" totalling at least half of the period of residence, underscores the distinction in the Act between residence and physical presence. /7/ The 1952 Act also required an alien to show "exceptional and extremely unusual hardship" in order to qualify for suspension of deportation. 8 U.S.C. (1952 ed.) 1254(a)(1). Although this provision was subsequently amended to require that the alien show that deportation would result in "extreme hardship" (Act of Oct. 24, 1962, Pub. L. No. 87-885, Section 4, 76 Stat. 1248), the "continuous physical presence" requirement remained unchanged. /8/ The decision below does not represent an isolated instance in which the Ninth Circuit has effectively disregarded the "continuous physical presence" requirement. See Chan v. INS, 610 F.2d 651 (1979), opinion withdrawn and petition for rehearing dismissed for mootness, 649 F.2d 753 (1980) (neither three-month trip to Hong Kong nor two-month trip to Austria were meaningfully interruptive); de Gallardo v. INS, 624 F.2d 85 (1980) (three and one-half month pleasure trip did not interrupt period of continuous presence); Sida v. INS, 665 F.2d 851 (1981) (month-long visit to Thailand to get married did not interrupt continuity of physical presence). /9/ In Plasencia v. Sureck, 637 F.2d 1286 (9th Cir. 1980), cert. granted sub nom. Landon v. Plasencia, No. 81-129 (Jan. 11, 1982), the Ninth Circuit held that even when a returning lawful resident alien has attempted to smuggle illegal aliens into this country contrary to a policy reflected in our immigration laws, and thus should be regarded as making an "entry" under Fleuti, that alien may not be excluded at the border but must be admitted into the United States and proceeded against, if at all, in deportation proceedings. This case, like Plasencia, is inconsistent with this Court's decision in Fleuti. Appendix Omitted