Niyom Phinpathya and Padungsri Phinpathya v. Immigration and Naturalization Service

Petitioners appeal the denials of their applications for suspension of deportation. We reverse.

Petitioners, husband and wife, are natives and citizens of Thailand who first entered the United States as nonimmigrant students. Mr. Phinpathya entered in August, 1968 and Mrs. Phinpathya in October, 1969. They were authorized to remain in the United States until July, 1971, but they remained beyond that date without permission. In 1974, Mrs. Phinpathya visited her sick mother in Thailand for three months; she reentered the United States as the spouse of a nonimmigrant student.

Deportation proceedings commenced in January, 1977. Orders to Show Cause were issued charging petitioners with deportability under 8 U.S.C. § 1251 (a)(2) as nonimmigrants who had remained beyond the time authorized. At the. deportation hearing, petitioners admitted deportability and applied for suspension of deportation under 8 U.S.C. § 1254 (a)(1). The immigration judge granted Mr. Phinpathya’s application, but denied Mrs. Phinpathya’s application. The immigration judge found Mrs. Phinpathya to be statutorily ineligible for suspension of deportation on the ground that she had not satisfied the seven years…