Interim Decision #2322 

MATTER OF HALABI 

In Deportation Proceedings 

, A-19931274 

Decided by Board October 8, 974 

Respondent was initially charged with failure to comply with the conditions of his nonimmigrant status under section 241(a)(9) of the Immigration and Nationality Act. He 

denied deportability under the charge. After the date the order to show cause was 

issued, but prior to the hearing date, the respondent's authorized period of stay 

expired. Respondent was found deportable under section 241(a)(2) of the Act on a 

remained longer charge which was lodged at the hearing. 

CHARGES: 

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

comply with conditions of nonimmigrant status 

Lodged: Act of 1952—Section 241(a)(2) [8 !MC. 1251(a)(2)1—Nonimmigrant- 

. Remained longer than permitted. 

Ole BERALW or RE.spcminvaT: David F. Aberson, Esquire 

1801 Avenue of the Stars, #900 

. Los Angeles, California 90067 

In a decision dated February 23, 1973, the immigration judge found 

the respondent deportable on the lodged charge, but granted him the 

privilege of departing voluntarily from the United States in lieu of 

deportation. The respondent has appealed from that decision. The 

peal will be dismissed. 

The respondent is an alien who is a native and citizen of Lebanon. He 

entered the United States as a nonimmigrant student and was au 

thorized to remain until January 26, 1973. On November 29, 1972, an 

order to show cause was issued charging the respondent with being 

deportable under section 241(a)(9)"of the Immigration and Nationality 

Act for failure to comply with the conditions Of his nonimmigrant status. 

A hearing was held on February 9, 1973, at which the respondent 

admitted the first four factual allegations of the order to show cause, 

denied the fifth allegation, denied deportability, and refused to answer 

questions regarding deportability. The trial attorney then lodged a 

factual allegation, number six, that the respondent had not departed 

from the United States. He also lodged the charge that the respondent 

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Interim Decision #2222 

was deportable under section 241(a)(2) of the Act for having remained in 

the United States longer than permitted. The hearing was adjourned at 

the respondent's request. 

At the continued hearing held on February 23, 1973, the respondent 

admitted the lodged factual allegation, but denied deportability on the 

lodged charge. We agree with the immigration judge that deportability 

on the lodged charge has been established by evidence that is clear, 

convincing, and unequivocal. 

The respondent contends that he has been deprived of a hearing on, 

and an oppormity to defend against, the "out of status" charge. However, he has not shown how he was prejudiced by the failure of the 

Government to pursue that charge. 

The present case is not like Matter of Siffre, 14 I. & N. Dec. 444 (BIA 

1973). In Siffre, we held that deportability of an alien on a "remained 

longer" charge under section 241(a)(2) cannot be sustained where the 

charge was brought prior to the expiration of the alien's authorized 

period of stay. In the case before us, however, the "remained longer" 

charge was properly lodged after the expiration of the respondent's 

authorized period of stay. The respondent received adequate notice of, 

and an opportunity to defend against, the lodged charge. 

The respondent asserts that he is not deportable on the "remained 

longer" charge because at the time his visa expired he was "under 

docket control" with a hearing pending on his violation of status. The 

respondent was not detained or held on bond pending hearing. He was 

free to leave the country at any time prior to the commencement of his 

hearing. The pendency of deportation proceedings does not entitle a 

nonimmigrant to an extension of his authorized stay in order to attend 

the scheduled hearing. 

The respondent did not apply for an extension of his student stay. He 

claims that by charging him with being out of status the district director 

in effect precluded him from submitting an application for an extension. 

The question of whether or not a student stay should be extended is a 

matter within the sole discretion of the district director. See 8 CFR 

103.1(f); 8 CFR 214.2(0(5); 8 CFR 214.2(0(7); Matter of Sourbis, 11 I. & 

N. Dec. 335 (BIA 1965). Neither we nor the immigration judge has any 

authority to consider a claim that the district director did not give the 

respondent a proper opportunity to apply for an extension. 

Finally, the respondent contends that 22 CFR 41.122(e), a Department of State regulation, prevents the expiration of a nonimmigrant's 

authorized stay while deportation proceedings are pending. The short 

answer to this contention is that the regulation in question is not 

applicable to this case. 

The immigration judge's decision was correct. The appeal will be 

dismissed. 

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ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily 

within 28 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. 

Maurice A. Roberts, Chairman, dissenting: 

I respectfully dissent. It seems to me that the respondent was denied 

due process by the procedures here employed. 

The respondent was admitted as a. nonimmigrant student until 

January 26, 1973. Before that period expired, an order to show cause 

was issued on November 29, 1972, charging him with failure to comply 

with the conditions of his nonimmigrant admission. Had the hearing 

been promptly held, the Service wouldhave been required to prove that 

charge; a "remained longer" charge could not then be sustained, Matter 

of Siffre, 14 I. & N. Dec. 444 (BIA 1973). By holding the hearing after 

January 26, 1973 and then lodging a "remained longer" charge, the 

Service was able to avoid proving its original accusation and to confront 

respondent with one to which there could be no defense. This "heads I 

win—tails you lose" procedure was prejudicial to the respondent. 

We may not presume that the Service would have been able to prove 

the charge contained in the order to show cause; conceivably, the respondent might have been able to show that he had not violated his 

student status. By thus switching charges after respondent's remaining 

beyond January 26, 1973 was a fait accompli, the Service put him in a 

position where, conceivably without fault, he was defenseless. This is 

not due process. 

It is no answer to say, as does the Board opinion (p. 2), that the 

respondent was free to leave the country at any time prior to the 

commencement of his hearing. If the respondent felt he had a defense to 

the charge in the order to show cause, there was no reason for him to 

leave the country before his authorized stay expired without contesting 

the charge and then seeking an extension of student stay if the charge 

should not be sustained. 

It would have been futile for him to apply for an extension of his 

student stay, once the order to show cause was issued. The district 

director's issuance of the order to show range on the "failed to maintain 

status" charge within the period of admission constituted a preliminary 

finding by that officer that prima facie the respondent was out of status. 

Since maintenance of status is a prerequisite to an extension of stay, the 

district director's action in issuing an order to show cause effectively 

blocked a timely extension application. I do not think an alien under 

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such circumstances should be expected to file an extension application 

anyway, just in case the "failed to maintain status" charge turns out not 

to be sustained at the hearing. 

It is also no answer, in my estimation to say that "The question of 

whether or nc• a student stay should be extended is a matter within the 

sole discretion of the district director." (Opinion, p. 3; emphasis in 

original.) That statement would be germane if no order to show cause 

had been issued and an extension application had been timely made and 

denied. On the other hand, where as here a "failed to maintain status" 

charge is used, there is no reasonto believe that•f it is .not sustained at 

the hearing the district director will in any event deny an extension 

application. Conceivably, if the deportation hearing had been held before January 26, 1973 and the immigration judge had not sustained the 

charge, the district director would have accepted the holding, the respondent would have filed a timely extension application, and the district director would have granted it. Respondent was deprived of this 

opportunity of applying for an extension of stay when the hearing was 

held after January 26, 1973 and the original charge was abandoned. 

I would remand to give the Service the opportunity to elect either to 

prove the original "failed to maintain status" charge or to terminate the 

proceedings .i.nd give the respondent • a chance to file an extension 

application. 

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