Definitions: (from 8 CFR §244.1)
Continually Physically Present means actual physical presence in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences as defined within this section.
Continuously Resided means residing in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual and innocent absence as defined within this section or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.
What constitutes a defense to a violation of the continuous residency requirement? This is true of both TPS and other residency requirements for various applications through USCIS (for example, citizenship applications, etc.). Under a ruling by the AAO (Administrative Appeals Office - the office responsible for adjudicating appeals related to most forms and USCIS based decisions), the following definition is the answer:
[T]he phrase brief, casual, and innocent absence, as defined in 8 C.F.R. 3 244.1, means a departure from the United States that satisfies the following criteria: (1) Each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence; (2) The absence was not the result of an order of deportation, an order of voluntary departure, or an administrative grant of voluntary departure without the institution of deportation proceedings; and (3) The purposes for the absence from the United States or actions while outside of the United States were not contrary to law.
(AAO Decision, December 14, 2005, EAC-03-30-51246)
When writing a brief in support of an individual who has traveled outside of the United States during a period of required "continuous residency," be sure to cite to the AAO's factors, one-by-one, and how they relate to your client. Additionally, provide evidence of the short duration of the trip, the nature of the trip, and individuals who can confirm that the travel was indeed, brief, casual, and innocent. Mere testimony or sworn statements of your client will not be enough.
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