Interim Decision #2797

Interim Decision #2797

MATTER OF ITARUGFIESE

In Deportation Proceedings

A-21582322

Decided by Board June 6, 1980

(1) In determining whether or not one has been ordained as a minister and has carried

on the vocation of a minister of a recognized religious denomination, acceptable

evidence includes a letter or other appropriate statement signed by the Superior or

Principal of the religious denomination.

(2) The respondent, a full-time student seeking an adjustment of status, has not established that he qualities tot "special iumligraur status as a min

' ister under section

101(a)(27)(C) of the Immigration and. Nationality Act, 8 U.S.C. 1101(a)(27)(C), when

his work at the church has been of a voluntary nature delegated to him by the

minister.

(3) Although the respondent preaches every other Sunday and sometimes takes the

offering when the deacons do not come to the Service, he has not carried on the

vocation of minister of the church as defined by section 101(a)(21)(C) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(C), when only 9 hours per week are

devoted to church activities, and he is not compensated.

CHARGE:

Orden Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)j—Nonimmigrant—remained

longer than, permitted

ON BEHALF OF RESPONDENT:

Pro se

BY: Milhollan, Chairman; Maniatis, Appleraan, Maguire, and Farb, Board Members.

In a decision dated July 25, 1978, the immigration judge found the

respondent deportable as charged, denied his application for adjustment of status under section 245 of the Immigration and Nationality

Act, 8 U.S.C. 1255, and granted him the privilege of voluntary departure in lieu of deportation. The respondent has appealed from that

decision. The appeal will be dismissed.

The respondent is a 38-year-old male native and citizen of India who

was allegedly ordained as a minister in India in 1968. He entered the

United States at New York on August 5, 1973, as a non-immigrant

student authorized to remain until June 20, 1977. On June 24, 1977, the

Church of God Chapel sought to confer preference status upon the

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respondent as a minister.

In a Service interview on September 1, 1977, the respondent averred

that he did not do any work for the Church of God but only attended

worship services. When the petition was approved, however, he would

be the mission director, sending the gospel to other countries and

keeping records.

The District Director predicated his, denial of the petition on the fact

that the respondent had not been employed since his entry on August

5, 1973, and, therefore, had not been primarily engaged in a religious

occupation for 2 years prior to seeking adjustment based upon a labor

certification, as required by 20 C.F.R. 656.22(e).

On appeal to the Regional Commissioner, the decision of the District

Director was affirmed on May 3, 1978. The Regional Commissioner

found that the respondent/beneficiary had not been primarily engaged

as a minister for, the previous 2 years.

On July 11, 1978, an Order to Show Cause was issued charging the

respondent with deportability under section 241(a)(2) of the Act, 8

U.S.C. 1251(a)(2), as an alien who had remained longer than permitted.

A deportation hearing was held on July 25, 1978. The respondent

denied that his student visa had expired on. June 20, 1977, and that he

had remained beyond that date without authorization. He testified

that he started working for the Church of God Chapel in June 1976,

without compensation. His job entailed spending every other Sunday

preaching and leading prayer meetings on Wednesdays. He spent

approximately 9 hours per week at the church. In addition, he maintained 12 semester hours of classroom work at Southwestern College.

Upon adjustment of his status to that of a minister, the Church agreed

to pay him $25 per week for his work as a mission director.

The immigration judge treated his denied visa petition as an application for adjustment of status under section 245 of the Act. He found

the respondent deportable as charged in that the respondent's ArrivalDeparture Card, Form 1 94, clearly indicated that the respondent was

authorized to remain in the United States until June 20, 1977. The

immigration judge found that the respondent did not qualify for

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adjustment of status as a minister under section 101(a)(27)(C) of the

Act, 8 U.S.C. Ll01(a)(27)(C), inasmuch as he had not been principally

engaged in religious work. He further found the respondent ineligible

for relief under section 245 of the Act based upon section 245(c) of the

Act. Because the respondent had worked without permission of the

Service, he was precluded from adjusting his status pursuant to section 245 of the Act. The respondent was granted 5 months voluntary

departure to complete the fall semester at the university.

On appeal, the respondent contends that 1) his petition should have

been approved, 2) he was unable to extend his stay in the United States

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because the Service had his 1-94, and 3) the law is contradictory in that

a nonimmigrant student cannot work without permission of the Service. Therefore, he could never obtain the requisite 2 years experience.

Pursuant to 8 C.F.R. 3.1(b)(5), this Board is without jurisdiction to

review the denial of a preference petition based upon a profession or

occupation under section 203(a)(3) or 203(a)(6) of the Act, 8 U.S.C.

1153(a)(3) or 1153(a)(6). The respondent may sue for review in the

United States District Court.

In order to establish an alien's deportability as an "overstay," the

Service need only show that the alien was admitted as a nonimmigrant

"... for a temporary period, that the period has elapsed, and that the

nonimmigrant has not departed." Milande v. I.Na 484 F.2d 774, 776 (7

Cir. 1973); Matter of Teberen, 15 I&N Dec. 689 (BIA 1976). It is clear to

this Board that the Service has established that the respondent is an

overstay and is therefore deportable.

The immigration judge erroneously considered the respondent's

eligibility for adjustment of status as if an adjustment application had

been filed. Nevertheless, in order to avoid leaving the respondent in

doubt, through no fault of his own, we shall address the issue of

adjustment of status.

In order to he eligible for adjustment of status, the respondent must

establish that he is eligible to receive an immigrant visa, that he is

admissible to the United States for permanent residence, and that an

immigrant visa is immediately available to hint at the time his application for adjustment is filed. An alien seeking an adjustment of status

to that of a permanent resident is assimilated to the position of an

alien seeking entry to the United States for permanent residence.

Campos v. INS, 402 11.2d 758 (9 Cir_ 1968), cert.. denied, 429 U.S. 999

(1976), citing Amarante v. Rosenberg, 326 F.2d 58 (9 Cir. 1964); Ambra

v. Ahrens, 325 F.2d 468 (5 Cir. 1963).

The respondent has based his application for adjustment of status

on the contention that he is a "minister" of a religious denomination

and thus classifiable as a special immigrant pursuant to section

101(a)(27)(C)(i) of the Act. Section 101(a)(27)(C)(i) defines, in pertinent

part, a special immigrant as:

an immigrant who continuously for at least two years immediately preceding the time

of his application for admission to the United States has been, and who seeks to enter

the United States solely for the purpose of carrying on the vocation of minister of a

religious denomination, and whose services are needed by such religious denomination

having a bona fide organization in the United States.

The Act does not provide a definition of the term minister. State

Department regulation 22 C.F.R. 42.25, however, contains the following elaboration:

(b) The term "minister", as used in section 101 (a)(2t)(C) of the Act, means a person

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duly authorized by a recognized religious denomination having a bona fide organization in the United States to conduct religious worship, and to perform other duties

usually performed by a regularly ordained pastor or clergyman of such denomination.

The term shall not include a lay preacher not authorized to perform the duties usually

performed by a regularly ordained pastor or clergyman of the denomination of -which

he is a member, and shall not include a nun, lay brother, or cantor.

In Matter of Rhee, 16 I&N Dec. 607 (BIA 1978), we reaffirmed our

authority to consider an alien's qualifications for special immigrant

status as a minister of religion under section 101(a)(27)(C) of the Act.

Compare Matter of Wiesinger, 16 I&N Dec. 480 (BIA 1978).

We agree with the conclusion of the immigration judge insofar as he

found that the respondent does not meet the requirements of section

101(a)(27)(C) of the Act. Since his arrival in the United States, until he

sought to adjust his status, the respondent was a full time student.'

Further, it is unclear as to whether or not the respondent was ever

ordained as a minister in India and carried on the vocation of a

minister of a recognized religious denomination in that country. Acceptable evidence that an individual meets the qualifications of a

minister, when applying for admission to this country, includes a letter

or other appropriate statement signed by the Superior or Principal of

the religious denomination in the United States. The respondent has

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merely alleged that he was ordained as a minister in India.

His religious duties, if any, with the Church of God in Oklahoma

City have been of a voluntary nature delegated to him by the minister

of the chnrch. He testified that sometimes he preaches every other

Sunday when the minister doesn't preach, and sometimes he takes the

offering when the deacons do not come to the service. He has been

performing such services without compensation since 1976. The respondent has not carried on the vocation of minister with the Church

of God.' Matter of Rhee, supra; Matter of isulca,10 I&N Dec. 712 (R.C.

1963).

We agree with the immigration fudge that the respondent, while

earryitig a full-time school schedule, cannot claim 9 hours per week in

church activities as continuously carrying on the vocation of minister

so as to satisfy the requirements of the Aet. Moreover, while failure to

offer proof of his ordination might be corrected if all else were satisfactory, it is immaterial here.

We do not reach the propriety of the immigration judge's finding

8 C.F.R. 214.2(f)(1a) provides that a full course of study at a college consists of at least

12 hours of instruction a week.

Although the church allegedly provided him with a "preaching license," he has not

been ordained by the church (Tr. p. 11). Accordingly, we question whether a preaching

license provided by the Church of God is tantamount to authorization by a religious

denomination, as provided in 22 C.F.R. 42.25(b).

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that the respondent is ineligible to adjust his status in that he was

employed without permission of the Service.

The appeal will be dismissed.

ORDER: The appeal is dismissed.

FURTHER ORDER: The respondent is permitted to depart from

the United States within 30 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, the respondent shall be

deported as provided in the immigration judge's order.