BENNETT

Interim Decision #2955

MATTER OF BENNETT

In Deportation Proceedings

A.-12515060

Decided by Board February 8, 1984

(1) An alien who is admitted to the United States as a nonimmigrant visitor, who

without permission of the Immigration and Naturalization Service engages in

purely religious activities on behalf of a church, and who is compensated for those

activities, is deportable for failure to maintain status even if he now qualifies as a

special immigrant minister and intends to work for the same church which has

been employing him.

(2) Such employment also bars the alien from adjusting his status pursuant to sec-

tion 245(cX2) of the Immigration and Nationality Act, 8 U.S.C. § 1255(cX2) (1982).

CHARGE.

Order: Act of 1952—Sec. 241(8)(9) [8 U.S.C. § 1251(aX9)1—Nonimmigrant—failed to

comply with conditions of status

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Stephen B. Horton, Esquire Kenneth W. De Conti,

60 Washington Street General Attorney

Hartford, Connecticut 06106

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

In a decision dated June 24, 1982, an immigration judge found

the respondent deportable as charged, denied his application for

adjustment of status, and granted him the privilege of voluntary

departure in lieu of deportation. The respondent appealed. The

appeal will be dismissed.

The respondent is a 58-year-old native and citizen of Belize. He

was last admitted to the United States in December of 1981 as a

nonimmigrant visitor for pleasure authorized to remain in this

country for not more than 6 months. On March 29, 1982, an Order

to. Show Cause, Notice of Hearing. and Warrant for Arrest of Alien

(Form I-221S), was issued against him, alleging that he had been

employed as a minister without permission. He was charged with

deportability as a nonimmigrant who failed to comply with the con-

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Interim Decision #2955

ditions of his nonimmigrant status pursuant to section 241(a)(9) of

the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(9) (1982).

At a deportation hearing held on June 24, 1982, the respondent,

through counsel, initially conceded deportability but subsequently

retracted the admission, arguing that his employment was not un-

authorized and thus did not violate his nonimmigrant status. He

further argued that even if he was deportable, his employment was

not unauthorized so as to bring him within the employment bar of

section 245(c)(2) of the Act, 8 U.S.C. § 1255(c)(2) (1982), thus prohib-

iting his adjustment of status. The immigration judge, however,

found that the respondent's employment was unauthorized for pur-

poses both of deportability and adjustment of status. The immigra-

tion judge further found that the respondent was ineligible for ad-

justment because he failed to establish that he was not inadmissi-

ble to the United States because of a 1970 deportation (see section

212(aX17) of the Act, 8 U.S.C. § 1182(a)(17) (1982)), and because of a

possible criminal conviction in Canada for fraud (see section

212(a)(9) of the Act).

On appeal, the respondent argues 1 that the rendering of purely

religious services to a church does not violate his nonimmigrant

visitor status, nor doss it render him ineligible for adjustment of

status u.nder section 245(c)(2). He further argues that section

212(aX17) of the Act only requires that 5 years pass from the time

of deportation to the time the Attorney General's permission to

return is not required and does not require that an alien remain

outside the United States for all that time. Finally, he contends

that where the fraud charge against him in Canada was condition-

ally discharged following probation, he is not inadmissible under

section 212(aX9) of the Act.

In its memorandum on appeal, counsel for the Immigration and

Naturalization Service cites this Board's decision in Matter of Hall,

18 I&N Dec. 203 (BIA 1982), as support for the immigration judge's

holding. In Matter of Hall, we held that an alien who engaged in

fund-raising activities on behalf of his church and who received

room, board, and pocket money in return was employed within the

contemplation of section 245(c)(2).

Matter of Hall, supra, involved an alien who was seeking adjust-

ment of status as a second-preference immigrant. The respondent

in the present case, on the other hand, seeks adjustment as a spe-

1 The respondent's zuguLneuts on appeal arc in fact not arguments but rather are

framed as legal questions. They are contained in the Notice of Appeal (Form I-

290A), on -which counsel indicated that a brief would be forthcoming. However, no

brief has ever been submitted.

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Interim Decision #2955

cial immigrant minister, and the employment in question here is

identical to that in which he will be engaged if he gains immigrant

status_ Moreover, Hall's activities on behalf of the Unification

Church were not purely religious, whereas the respondent's activi-

ties in this case are. Hence, Matter of Hall is distinguishable on its

facts from the present case. 2 Nevertheless, we find the rationale of

Hall persuasive here. Like the alien in Hall, the respondent in this

case engages in activities on behalf of a church and in turn is com-

pensated by the church for those activities. 2 Clearly, this respond-

ent is employed by the church, and permission to engage in this

employment was never received from the Immigration and Natu-

ralization Service. The fact that the respondent's employment was

of a purely religious nature does not mean that he did not need

Service permission to engage in such employment. Nor does the

fact that the respondent now qualifies as a special immigrant min-

ister, and will be employed by the same church which employed

him prior to his adjustment application, Tender his employment au-

thorized. 4

As we find that the respondent's employment with his church

was unauthorized under the immigration laws, he is deportable

under section 241(a)(0) for failure to comply with the conditions of

his nonimmigrant status. See Ghorbani v. INS, 686 F.2d 784 (9th

Cir. 1982). Likewise, his employment was unauthorized within the

meaning of section 245(c)(2), rendering him ineligible for adjust-

ment of status. See Aiyadurai v. INS, 683 F.2d 1195 (8th Cir. 1982);

Oki v. INS, 598 F.2d 1160 (9th Cir. 1979); Matter of Hall, supra;

Matter of Raol, 16 I&N Dec. 466 (BIA. 19'78).

2 There is one published decision which does directly address the issue now before

us. In Matter of Dukpa, 18 I&N Dec. 282 (D.D. 1931), a district director ruled that

section 245(cX2) does apply to an alien who, prior to applying for adjustment, per-

forms duties and receives remuneration identical to the alien's anticipated duties

and remuneration as a special immigrant minicter. The decision cites no authority

for the holding, however, and the decision itself does not constitute a precedent for

this Board. See 8 C.F.R. § 103.3(e) (1984) regarding the precedential value of district

directors' decisions.

3 The alien in Hall received only room, board, and approximately $25 per month

"walking around" money. The respondent here receives a salary of $830 every 2

weeks, in addition to living quarters.

4 Compare Matter of Lett, 17 I&N Dec. 312 (BIA 1980), where we held that man-

agement of his investment by a qualified investor who is exempt from the labor cer-

tification requirements of section 212(aX14) of the Act, 8 U.S.C. § 1182(aX14) (1976),

does not constitute employment within the meaning of the Act and does not bar ad-

justment under section 245(cX2). The investor regulations constitute a special excep-

tion to the immigration laws' general rules regarding employment. The alien in Lett

was managing his own investment, while the respondent here is in the employ of a

church, filling a position which could also have been filled by an American worker.

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Interim Decision *2955

Our holding regarding the section 245(c) bar is lent support by

the Immigration and Nationality Act Amendments of 1981, Pub. L.

No. 97-116, 95 Stat. 1611. There, Congress carved out an exception

to the section 245(c)(2) bar for special immigrants who are qualify-

ing foreign medical graduates. No such specific exception was made

for special immigrant ministers. See section 245(c)(2) as amended by

the 1981 amendments. We must therefore assume that Congress in-

tended the employment bar to apply to them. See generally Andrus

v. Glover Construction Company, 446 U.S. 608, 616-17 (1980); United

States v. Jones, 567 F.2d 965, 967 (10th Cir. 1977). We note that

since special immigrant ministers must have been carrying on

their vocation as ministers for the 2 years immediately preceding

their applications for admission as special immigrants, they will

not be eligible for adjustment unless they have received Service

permission to engage in such work.

As we find that the respondent is ineligible for adjustment of

status under section 245(c)(2) of the Act, we need not decide wheth-

er he is also ineligible on the ground that he is inadmissible under

sections 212(a)(9) and/or 212(a)(17). His appeal will accordingly be

dismissed.

ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the immigration judge's

order and in accordance with our decision in Matter of Chouliaris,

16 I&N Dec. 168 (BIA 1977), the respondent is permitted to depart

from the United States voluntarily within 30 days from the date of

this order or any extension beyond that time as may be granted by

the district director; in the event of failure so to depart, the re-

spondent shall be deported as provided in the immigration judge's

order.

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