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 section 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 con9.1 
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 unauthorized 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 prohibiting his adjustment of status. The immigration judge, however, 

found that the respondent's employment was unauthorized for purposes both of deportability and adjustment of status. The immigration judge further found that the respondent was ineligible for adjustment because he failed to establish that he was not inadmissible 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 1that 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 conditionally 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 adjustment of status as a second-preference immigrant. The respondent 

in the present case, on the other hand, seeks adjustment as a spe1The 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 I290A), 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 activities in this case are. Hence, Matter of Hall is distinguishable on its 

facts from the present case. 2Nevertheless, 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 compensated by the church for those activities. 2Clearly, this respondent is employed by the church, and permission to engage in this 

employment was never received from the Immigration and Naturalization 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 minister, and will be employed by the same church which employed 

him prior to his adjustment application, Tender his employment authorized.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 adjustment 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, performs 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 management of his investment by a qualified investor who is exempt from the labor certification 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 adjustment under section 245(cX2). The investor regulations constitute a special exception 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 qualifying 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 intended 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 whether 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 respondent shall be deported as provided in the immigration judge's 

order. 

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