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Interim Decision #2349
MATTER OF HOSSEINPOUR
In Deportation Proceedings
A-19865881
Decided by Board March 5, 1975
Where a nonimmigrant respondent indicates his desire to remain in this
country permanently, by filing for adjustment of status under section
245 of the Immigration and Nationality Act, this action in itself, does
not constitute a failure to maintain status under section 241(a)(9) of
the Act. However, where the period of respondent's authorized stay
expired, and respondent neither applied for nor received an extension of
stay, he was deportable under section 241(a)(2) of the Act, as charged
in the order to show cause issued after respondent's period of authorized
stay had expired. [Matter of Gallares Interim Decision #2177 (BIA 1972)
modified]
CHARGES:
Order: Act of 1952-Section 241(a)(9) [8 U.S.C. l251(a)(9)]-Nonimmigrant
failed to comply with conditions of nonimmigrant
status under which omitted.
Lodged: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]-Nonimmigrant
remained longer than permitted.
ON BEHALF OF RESPONDENT: Rod L. Poirot, Esquire
701 Elm Street, Suite 500
Dallas, Texas 75202
In a decision dated August 29, 1974, the immigration judge found the
respondent deportable on both of the above charges and granted him the
privilege of departing voluntarily from the United States within 64 days
in lieu of deportation. The respondent has appealed from that decision.
The appeal will be dismissed.
The alien respondent is a native and a citizen of Iran who entered the
United States in May 1970 as a nonimmigrant student. He obtained
authorization to remain in the United States until May 25, 1973. In
February 1973, the respondent filed an application for adjustment of
status under section 245 of the Immigration and Nationality Act. On
June 21, 1973, the district director denied that application and informed
the respondent that he would be permitted to depart from the United
States voluntarily on or before July 21, 1973 without the institution of
deportation proceedings. The respondent has not departed.
The immigration judge concluded that the respondent was deportable
under section 241(a)(9) of the Act for failure to comply with the condi-
tions of his nonimmigrant status because he ted an application for
adjustment of status. That conclusion was based on language in Matter
of Gallares, 14 I. & N. Dec. 250 (BIA 1972), which indicates that a
nonimmigrant; who seeks adjustment of status under section 245 of the
Act thereby ceases to maintain status as a lawful nonimmigrant. We
believe that our language in Gallares concerning the effect of an applica-
tion for adjustment of status upon the maintenance of valid nonimmi-
grant status was overly broad.
As originally enacted, section 245(a) of the 1952 Act contained an
express provision that; "Any alien who shall file an application for
adjustment of his status under this section shall thereby terminate his
nonimmigrant status." Act of June 27, 1952, ch. 477, § 245, 66 Stat. 217.
The 1958 amendments to section 245 eliminated this provision. Act of
August 21, 1958, Pub. L. No. 85-700, § 1, 72 Stat. 699. Since the
legislative history of the 1958 amendments indicates that Congress was
well aware of the provision automatically terminating nonimmigrant
status, we must assume that the deletion of that provision was inten-
tional. S. Rept. No. 2133, 85th Cong., 2d Sess., 1958 U.S. Code Cong. &
Admin. News 3698, 3701. See also 2 C. Gordon & H. Rosenfield, Immi-
gration Law and Procedure § 7.7(b) (1975).
Moreover, courts have held that a desire to remain in this country
permanently in accordance with the law, should the opportunity to do so
present itself is not necessarily inconsistent with lawful nonimmigrant
status. Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); Bong Youn
Choy v. Barter, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of
H-R-, 7 I. & N, Dec. 651 (R.C. 1958).
To the extent that our language in Matter of Gallares, supra, indi-
cates that an application for adjustment of status automatically termi-
nates lawful nonimmigrant status, that case is modified. We now hold
that the filing of an application for adjustment of status is not necessar-
ily inconsistent with the maintenance of lawful nonimmigrant status.
Evidence introduced at the hearing indicates that the respondent has
been enrolled in school full time since his arrival in 1970 (Exhs. 6a, 6b,
6c, 7). The respondent's testimony indicated that he intended to remain
a student even though he had applied for permanent resident status,
and that he was willing to return home when his studies were completed
if ordered to do so (Tr. pp. 46-7). The respondent also stated that he had
not engaged in unauthorized employment, and that he was supporting
himself and paying child support with funds from his family (Tr. p. 60).
The Service apparently based the out of status charge solely on the fact
that the respondent applied for adjustment of status. We conclude that
the Service has failed to establish by clear, convincing, and unequivocal
evidence that the respondent is deportable under section 241(a)(9) of the
Act for failure to comply with the conditions of his nonimmigrant status.
Nevertheless, the record establishes that the respondent's authorized
stay in the United States expired on May 25, 1973 (Exh. 3). The
respondent received no extension of his authorized stay beyond that
date (Exh. 3; Tr. p. 48). Consequently, the respondent's deportability
under section 24l(a)(2) of the Act as a nonimmigrant who remained in
the United States after the expiration of his authorized stay has been
established by clear, convincing, and unequivocal evidence.
Counsel contends that the respondent is not deportable as an overstay
because by charging him with being out of status the Service in effect
precluded him from obtaining an extension of his stay as a nonimmigrant
student. The answer to this contention is threefold: (1) there is no
evidence in the record that the respondent ever applied for an extension
of his stay as a nonimmigrant student, (2) the order to show cause
charging the respondent with being out of status was not issued until
after the expiration of the respondent's authorized stay, and (3) the
decision whether or not to extend a nonimmigrant's authorized stay is
within the sole discretion of the district director and is not reviewable
by the immigration judge or by us. Matt of Halabi, 15 I. & N. Dec.
(BIA 1974).
Finally, counsel contends that the immigration judge should have
reinstated the respondent to student status. However, the immigration
judge had no jurisdiction to reinstate the respondent's student status.
Matter of Gallares, supra; see Matter of Halabi, supra; Matter of Sour-
bis, 11 I. & N. Dee. 335 (BIA 1965).
The respondent is deportable as a nonimmigrant who remained be-
yond the authorized length of his stay. The appeal will be dismissed.
ORDER. The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the re-
spondent is permitted to depart from United States voluntarily
within 64 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, respondent shall be deported as provided in the
immigration judge's order.
--
Interim Decision #2349
MATTER OF HOSSEINPOUR
In Deportation Proceedings
A-19865881
Decided by Board March 5, 1975
Where a nonimmigrant respondent indicates his desire to remain in this
country permanently, by filing for adjustment of status under section
245 of the Immigration and Nationality Act, this action in itself, does
not constitute a failure to maintain status under section 241(a)(9) of
the Act. However, where the period of respondent's authorized stay
expired, and respondent neither applied for nor received an extension of
stay, he was deportable under section 241(a)(2) of the Act, as charged
in the order to show cause issued after respondent's period of authorized
stay had expired. [Matter of Gallares Interim Decision #2177 (BIA 1972)
modified]
CHARGES:
Order: Act of 1952-Section 241(a)(9) [8 U.S.C. l251(a)(9)]-Nonimmigrant
failed to comply with conditions of nonimmigrant
status under which omitted.
Lodged: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]-Nonimmigrant
remained longer than permitted.
ON BEHALF OF RESPONDENT: Rod L. Poirot, Esquire
701 Elm Street, Suite 500
Dallas, Texas 75202
In a decision dated August 29, 1974, the immigration judge found the
respondent deportable on both of the above charges and granted him the
privilege of departing voluntarily from the United States within 64 days
in lieu of deportation. The respondent has appealed from that decision.
The appeal will be dismissed.
The alien respondent is a native and a citizen of Iran who entered the
United States in May 1970 as a nonimmigrant student. He obtained
authorization to remain in the United States until May 25, 1973. In
February 1973, the respondent filed an application for adjustment of
status under section 245 of the Immigration and Nationality Act. On
June 21, 1973, the district director denied that application and informed
the respondent that he would be permitted to depart from the United
States voluntarily on or before July 21, 1973 without the institution of
deportation proceedings. The respondent has not departed.
The immigration judge concluded that the respondent was deportable
under section 241(a)(9) of the Act for failure to comply with the condi-
tions of his nonimmigrant status because he ted an application for
adjustment of status. That conclusion was based on language in Matter
of Gallares, 14 I. & N. Dec. 250 (BIA 1972), which indicates that a
nonimmigrant; who seeks adjustment of status under section 245 of the
Act thereby ceases to maintain status as a lawful nonimmigrant. We
believe that our language in Gallares concerning the effect of an applica-
tion for adjustment of status upon the maintenance of valid nonimmi-
grant status was overly broad.
As originally enacted, section 245(a) of the 1952 Act contained an
express provision that; "Any alien who shall file an application for
adjustment of his status under this section shall thereby terminate his
nonimmigrant status." Act of June 27, 1952, ch. 477, § 245, 66 Stat. 217.
The 1958 amendments to section 245 eliminated this provision. Act of
August 21, 1958, Pub. L. No. 85-700, § 1, 72 Stat. 699. Since the
legislative history of the 1958 amendments indicates that Congress was
well aware of the provision automatically terminating nonimmigrant
status, we must assume that the deletion of that provision was inten-
tional. S. Rept. No. 2133, 85th Cong., 2d Sess., 1958 U.S. Code Cong. &
Admin. News 3698, 3701. See also 2 C. Gordon & H. Rosenfield, Immi-
gration Law and Procedure § 7.7(b) (1975).
Moreover, courts have held that a desire to remain in this country
permanently in accordance with the law, should the opportunity to do so
present itself is not necessarily inconsistent with lawful nonimmigrant
status. Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); Bong Youn
Choy v. Barter, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of
H-R-, 7 I. & N, Dec. 651 (R.C. 1958).
To the extent that our language in Matter of Gallares, supra, indi-
cates that an application for adjustment of status automatically termi-
nates lawful nonimmigrant status, that case is modified. We now hold
that the filing of an application for adjustment of status is not necessar-
ily inconsistent with the maintenance of lawful nonimmigrant status.
Evidence introduced at the hearing indicates that the respondent has
been enrolled in school full time since his arrival in 1970 (Exhs. 6a, 6b,
6c, 7). The respondent's testimony indicated that he intended to remain
a student even though he had applied for permanent resident status,
and that he was willing to return home when his studies were completed
if ordered to do so (Tr. pp. 46-7). The respondent also stated that he had
not engaged in unauthorized employment, and that he was supporting
himself and paying child support with funds from his family (Tr. p. 60).
The Service apparently based the out of status charge solely on the fact
that the respondent applied for adjustment of status. We conclude that
the Service has failed to establish by clear, convincing, and unequivocal
evidence that the respondent is deportable under section 241(a)(9) of the
Act for failure to comply with the conditions of his nonimmigrant status.
Nevertheless, the record establishes that the respondent's authorized
stay in the United States expired on May 25, 1973 (Exh. 3). The
respondent received no extension of his authorized stay beyond that
date (Exh. 3; Tr. p. 48). Consequently, the respondent's deportability
under section 24l(a)(2) of the Act as a nonimmigrant who remained in
the United States after the expiration of his authorized stay has been
established by clear, convincing, and unequivocal evidence.
Counsel contends that the respondent is not deportable as an overstay
because by charging him with being out of status the Service in effect
precluded him from obtaining an extension of his stay as a nonimmigrant
student. The answer to this contention is threefold: (1) there is no
evidence in the record that the respondent ever applied for an extension
of his stay as a nonimmigrant student, (2) the order to show cause
charging the respondent with being out of status was not issued until
after the expiration of the respondent's authorized stay, and (3) the
decision whether or not to extend a nonimmigrant's authorized stay is
within the sole discretion of the district director and is not reviewable
by the immigration judge or by us. Matt of Halabi, 15 I. & N. Dec.
(BIA 1974).
Finally, counsel contends that the immigration judge should have
reinstated the respondent to student status. However, the immigration
judge had no jurisdiction to reinstate the respondent's student status.
Matter of Gallares, supra; see Matter of Halabi, supra; Matter of Sour-
bis, 11 I. & N. Dee. 335 (BIA 1965).
The respondent is deportable as a nonimmigrant who remained be-
yond the authorized length of his stay. The appeal will be dismissed.
ORDER. The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the re-
spondent is permitted to depart from United States voluntarily
within 64 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, respondent shall be deported as provided in the
immigration judge's order.
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