NIATTER OF C— 

In DEPORTATION Proceedings 

A-11292572 

Decided by Board October 7, 1960 

Nonimmigrant status—Criminal conviction per se not considered violation of 

nonimmigrant status. 

Conviction for dieordcrly conduct does not conctituto violation of nonimmigrant student status where the alien was not incarcerated and continued his 

school attendance without interruption. (Modifies Matter of 6-762.) 

CHARGE : 

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

comply with nonimmigrant student status. 

13Et'OICE THE BOAKIJ 

DISCUSSION: This is an appeal from the special inquiry officer's 

order of Jurie 10, 1960, finding respondent deportable on the charge 

set forth above. Respondent, a native of Bermuda and subject of 

Great Britain, male, unmarried, 21 years of age, last entered the 

United States at New York on September 5, 1958, as a nonimmigrant 

student. His last extension expired September 4, 190. Respondent. 

admits that he was "apprehended" on December 5, 1959, on a charge 

of soliciting for lewd and immoral purposes. Exhibits 2 and 3, copies 

of records of the Metropolitan Police Department, Washington, 

D.C., disclose that respondent was a student at Howard University 

at the time of his apprehension; that this was his first arrest ; that 

the arrest took place at 1 :00 A.M. in the vicinity of Lafayette Park 

in Washington, D.C.; that, having made obscene proposals to a 

member of the Metropolitan Police Force, he was arrested and "taken 

to the CCB in a patrol wagon." 

An information was filed in the Criminal Division of the Municipal 

Court for the District of Columbia on December 7, 1959, alleging 

that respondent did unlawfully invite, entice, persuade, address for 

the purpose of inviting, enticing and persuading an adult person, 

to wit, E—M-74--- (police officer), for lewd and immoral purposes. 

The Assistant United States Attorney who handled this case appeared and testified at the immigration hearing, stating that this 

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charge was nolle prossed on February 5, 196U, and that respondent 

forfeited his collateral of $100 on a substituted charge of "disorderly conduct (sex)." The Assistant United States Attorney 

testified that since this was respondent's first offense, and since he 

was in the country temporarily as a student and was going to leave 

the country when he finished his studies, Mr. Q— felt it was a good 

disposition of the matter to permit respondent to plead guilty, in 

effect, to a lesser criminal offense. 

Exhibits 3 and 6, copied from the Metropolitan Police Department 

records, indicate that the substituted charge was "disorderly (pervert)," which differs from counsel's recollection that the substituted 

charge was "disorderly (sex)." Mr. Q— stated that in his opinion 

"disorderly (sex)" and "disorderly (pervert)" charges would be 

the came. The Assistant United States Attorney testified that the 

respondent "knew what he was forfeiting to and why"; that it is 

unimportant what he actually forfeited to, since he knew what he 

was charged with; and that the disposition of the case was to save 

the trial, save the court time; and that the nolle pros was contingent on the fact that respondent would forfeit the $100 collateral. 

This disposition of the case is indicated by exhibits 5 and 6 (court 

and police records). 

The special inquiry officer found that respondent's criminal offense constitutes activity inconsistent with and in violation of 

the conditions of his nonimmigrant status. He stated that regardless of the name given the offense, it stems from homosexuality, and 

that respondent cannot establish good moral character for the past 

five years in order to qualify for a grant of voluntary departure. 

In oral argument before the Board the Service representative 

cited our decision, Matter of A—, 6-762, wherein an alien in the 

United States as a temporary visitor for pleasure was arrested 

fur "disorderly conduct, loading," under a New York statute 

defining disorderly conduct as an "offense" rather than as a crime. 

In Matter of A—, supra, the alien was sentenced to 30 days in the 

workhouse and served that sentence. The Board found that the 

conduct which resulted in his conviction under that section "constituted activity inconsistent with his status as a nonimmigrant 

visitor for pleasure." The Service representative seeks to have the 

decision in Matter of A—, supra, extended to the present case, stating that it is not a significant distinction that A— was confined for 

a period of time in a penal institution and that the alien in the 

instant matter was nut confined. 

The decision in Matter of A —, supra, does not make it sufficiently 

clear, perhaps, that we had in mind the fact that when A— was 

serving a 30 day term in the workhouse, he was no longer pursuing 

the purpose for which he was admitted. He was admitted as a tern101 
porary "visitor for pleasure" and the jail sentence interrupted his 

pursuit of pleasure, and, therefore, he was out of status. It seemed 

to us that it was his conviction and confinement which constituted 

the activity inconsistent with his status, rather than the criminal 

conduct itself. 

Respondent was not incarcerated, and while on probation apparently he continued his attendance at Howard University, Washington, D.C., without interruption, except for vacations. There is 

nothing to show that he was expelled from college. So far as this 

record shows, he has not accepted employment, or in any other way 

"failed to abide by all the terms and conditions of his admission or 

extension" as a student, as provided by the regulations. His conduct, 

while not to be condoned, resulted in a suspended sentence only, 

without any interruption of his attendance at school. We find on 

this record that respondent maintained the nonimmigrant status 

of a student under which he was admitted, and the appeal will be 

sustained. 1 

ORDER: It is ordered that the appeal be and the same is hereby 

sustained. 

1The instant case is similar on its facts to Matter of M—S'—, A-8953895 

(B.I.A., June 24, 1957), and identical with Matter of A-1349127 (B.I.A., 

December 3, 1959), both unreported, wherein the Board's disposition of the 

issue was consistent with the position taken here_ In both those cases the 

Board held that the aliens had maintained their student status, since there 

was no evidence of intent to abandon it, and they had continued in school 

while on probation. 

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