Interim Decision #2232

Interim Decision #2232

MATTER OF MEHTA

In Deportation Proceedings

A-18488770

Decided by Board August 17, 1973

A nonimmigrant student's 23-day incarceration resulting from conviction for the

crimes of profanity in public and breach of peace was inconsistent with the

purpose for which he was admitted and constituted a violation of his nonimmigrant student status where such incarceration meaningfully interrupted the

pursuit of his academic studies (as evidenced by his lack of satisfactory progress

toward his degree). Therefore, he is deportable under section 241(a)(9) of the

Immigration and Nationality Act for failure to comply with the conditions of

nonimmigrant (student) status under which admitted. [Matter of C—, 9 I. & N.

Dec. 100, distinguished.]

CHARGE:

Order: Act of 1952 —Section 241(a)(9) [8 U.S.C. 1251(a)(9)1 —Failed to comply

with conditions ot nonimmigrant (student) status under

which admitted.

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Bernard P. Becker, Esquire

Legal Aid Society, Inc.

501 Park Avenue

Minneapolis, Minnesota 55415

John W. Bowser

District Director

(Brief filed)

This is an appeal from a decision of an immigration judge

Ending the respondent deportable as charged and ordering his

deportation. During the pendency of the appeal the Service has

filed a motion to reopen the proceedings and remand to the

immigration judge for further hearing. The Service motion will be

denied and the appeal will be dismissed.

The respondent is a 26-year-old unmarried male alien, a native

and citizen of India, who entered the United States on or about

September 3, 1968 as a nonimmigrant student for a temporary

period. At a hearing before an immigration judge, at which he was

represented by present counsel, respondent denied the truth of

allegations 7, 8, and 9 of the order to show cause and. denied

deportability.

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Interim Decision #2232

At the hearing the respondent admitted.that he was convicted

in Hennepin County, Minnesota for the crimes of profanity in

public and breach of the peace (Tr. p. 22 and Ex. 5). The record

indicates that he was sentenced to serve 90 days in jail as a result,

that he actually was incarcerated in the Minneapolis City Workhouse, Wayzata, Minnesota from February 14, 1973 to March 9,

1973 (Ex.5), and that he was released on parole for the balance of

the term (Ex. 6). The immigration judge concluded that the

respondent had violated the conditions of his nonimmigrant student status in that Ms imprisonment was inconsistent with the

purpose for which he was admitted. The immigration judge found

the respondent deportable under section 241(a)(9) of the Immigration and Nationality Act.

We agree with the immigration judge that the respondent's 23day incarceration constitutes a substantial violation of the terms

of his student status.' Counsel's contention that the respondent's

studies were not meaningfully interrupted thereby is contradicted

by evidence that the respondent was not in fact making satisfactory progress toward his graduate degree, as of March 5, 1973 (Ex.

The present case is distinguishable from Matter of C—, 9 1. & N.

Dec. 100 (BIA, 1960), upon which counsel relies. In that case the

alien was convicted for disorderly conduct but was not incarcerated,

and he continued his course of study and school attendance

without interruption.We recognized this very distinction in Matter

of C—, supra, wherein we rejected the Service's contention that

Matter of A—, 6 I. & N. Dec. 762 (BIA 1955) should control. Matter

of A—, supra, involved a nonimmigrant visitor who was convicted

and imprisoned for disorderly conduct. We held there, as we hold

today, that incarceration for a substantial period for a criminal

offense constitutes a violation of nonimmigrant status, in that the

respondent is no longer pursuing the purpose for which he was

admitted.

We have reached the same conclusion in a case where a

nonimmigrant visitor was not incarcerated for the offense, Matter

of Neely and Whylie, 11 I. & N. Dec. 864 (BIA 1966). In that case we

commented on Matter of C — , supra, to emphasize that respondent

C's studies had not been meaningfully interrupted as a result of

1 While we do not rely on any facts asserted in the Service motion to reopen,

we note in passing that it alleges that on June 26, 1973 the respondent's parole

was revoked and he was committted to serve the remaining 67 days of his 90-day

sentence. Respondent's representative deco not deny that he is at present in

detention.

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Interim Decision #2232

his conviction, whereas a visitor's conviction of a criminal offense

is clearly inconsistent with his pursuit of pleasure.

Our review of the facts and the applicable law therefore

satisfies us that deportability has been established by clear,

convincing, and unequivocal evidence. We concur in the findings of

the immigration judge and his decision will be affirmed.

ORDER: The Service motion to reopen is denied and the appeal

is dismissed.

453