Interim Decision #2349 

MATTER OF HOSSEINPOUR 

In Deportation Proceedings 

A-19865881 

Decided by Board March 5, 1975 

Where a nonimmigrant respondent indicates his desire to remain-in this country permanently, by filing for adjustment of status under section 246 of the Immigration: and 

Nationality Act, this action in itself, does not constitute a failure to maintain status 

under section 241(a)(9) of the Act. However, where the period of respondent's authorized stay expired, and respondent neither applied for nor received an extension of 

stay, he was deportable under section 241(a)(2) of the Act, as charged in the order to 

show cause issued after respondent's period of authorized stay had expired. [Matter of 

Gaitares Interim Decision #2177 (BIA 1972) modified] 

CHARGES: • 

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

II comply with conditions of nonimmigrant status under which 

admitted. 

Lodged: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]--Nonimmigrant remained 

longer than permitted. 

ON BEHALF* OF RESPONDENT: Rod L. Poirot, Esquire 

701 Elm Street, Suite 500 

Dallas, Texas 75202 

In a decision dated August 29, 1974, the immigration- judge found the 

respondent deportable on both of the above charges and granted him the 

privilege of departing voluntarily from the United States within 64 days 

in lieu of deportation. The respondent has appealed froni that decision. 

The appeal will be dismissed. 

The alien respondent is a native and a citizen of Iran who entered the 

United States in May 1970 as a nonimmigrant student. He obtained 

authorization to remain in the United States until May 25, 1973. In 

February 1973, the respondent filed an application for adjustment of 

status under section 245 of the Immigration and Nationality. Act. On 

June 21, 1973, the district director denied that application and informed 

the respondent that he would be permitted to depart from the United 

States voluntarily on or before July 21, 1973 without the institution of 

deportation proceedings. The respondent has not departed. - 

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The immigration judge concluded that the respondent was deportable 

under section 241(a)(9) of the Act for failure to comply with the conditions of his nonimmigrant status because he submitted an application for 

adjustment of status. That conclusion was based on language in Matter 

of Gallares, 14 L & N. Dec. 250 (BIA 1972), which indicates that a 

nonimmigrant who seeks adjustment of status under section 245 of the 

Act thereby ceases to maintain status as a lawful nonimmigrant. We 

believe that our language in Gallares concerning the effect of an application for adjustment of status upon the maintenance of valid nonimmigrant status was overly broad. 

As originally enacted, section 245(a) of the 1952 Act contained an 

express provision that: `!Any alien who shall file an application for 

adjustment of his status under this section shall thereby terminate his 

nonimmigrant status." Act of June 27, 1952, ch. 477, § 245, 66 Stat. 217. 

The 1958 amendments to Section 245 eliminated this provision. Act of 

August 21, 1958, Pub. L. No. 85-700, § 1, 72 Stat. 699. Since the 

legislative history of the 1958 amendments indicates that Congress was 

well aware of the provision automatically terminating nonimmigrant 

status, we must assume that the deletion of that provision was intentional. S. Rept. No. 2133, 85th Cong., 2d Sees., 1958 U.S. Code Cong. & 

Admin. New: 3698, 3701. See also 2 C. Gordon & H. Rosenfield, Immigration Law and ProCedure § 7.7(b) (1975). 

Moreover, courts have held that a desire to remain in this country 

permanently :.n.accordance with the law, should the opportunity to do so 

present itself, is not necessarily inconsistent with lawful nonimmigrant 

status. Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 195'1); Bong Youn 

Choy v. Barber, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of 

H—R—, 7 I. & N. Dec. 651 (B.C. 1958). 

To the extant that our language in Matter of Gallares, supra, indicates that an application for adjustment of status automatically terminates lawful nonimmigrant status, that case is modified. We now hold 

that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of , lawful nonimmigrant status. 

Evidence introduced at the hearing indicates that the respondent has 

been enrolled in school full time since his arrival in 1970 (Exhs. 6a, fib, 

6e, 7). The respondent's testimony indicated that he intended to remain 

a student even though he had applied for permanent resident status, 

and that he was willing to return home when his studies were completed 

if ordered to do so (Tr. pp. 46-7). The respondent also stated that he had 

not engaged :in unauthorized employment, and that he was supporting 

himself and paying child support with funds from his family (Tr. p. 60). 

The Service apparently based the out of status charge, solely on the fact 

that the respondent applied for adjustment of status. We conclude that 

the Service has failed to establish by dear, convincing, and unequivocal 

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evidence that the respondent is deportable under section 241(a)(9) of the 

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

Nevertheless, the record establishes that the respondent's authorized 

stay in the United States expired on May 25, 1973 (Exh. 3). The 

respondent received no extension of his authorized stay beyond that 

date (Exh. 3; Tr. p. 48). Consequently, the respondent's deportability 

under section 241(a)(2) of the Act as a nonimmigrant who remained in 

the United States after the expiration, of his authorized stay has been 

established by clear, convincing, and unequivocal evidence. 

Counsel contends that the respondent is not deportable as an overstay 

because by charging him with being out of status the Service in effect 

precluded him from obtaining an extension of his stay as a nonimmigrant 

student. The answer to this contention is threefold: (1) there is no 

evidence in the record that the respondent ever applied for an extension 

of his stay as a nonimmigrant student, (2) the order to show cause 

charging the respondent with being out of status was not issued until 

after the expiration of the respondent's authorized stay, and (3) the 

decision whether or not to extend a nonimmigrant's authorized stay is 

within the sole discretion of the district director and is not reviewable 

by the immigration judge or by us. Matter of Halabi, 15 I. & N. Dec. 

(BIA 1974). 

Finally, counsel contends that the immigration judge should ,have 

reinstated the respondent to student status. However, the immigration 

judge had no jurisdiction to reinstate the respondent's student status. 

Matter of Gallares, supra; see Matter of Halabi, supra; Matter of Sourbis, .111. & N. Dec. 335 (BIA 1965). 

The respondent is deportable as a nonimmigrant who remained beyond the authorized length of his stay. The appeal will be dismissed. 

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 64 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. 

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