Interim Decision #2788

MATTER OF SEDGHI

In Deportation Proceedings
A-21150074
Decided by Board April 25, 1980
(1) The reporting requirements of 8 C.F.R. 214.5(a)(1979) required each Iranian student
to present "jejvidence from the school of enrollment and payment of fees or waiver of
payment of fees for the current semester."
(2) The purpose of the reporting requirements was to assist in identifying "any Iranian
students in the United States who [were) not in compliance with the terms of their
entry visas . ..."
(3) In view of the purpose underlying the reporting requirements, a "waiver of payment
of fees" for maintenance of student status purposes will be presumed to have been
granted if a school allows a student, who has not paid all fees, to continue with his or
her studies, even though ultimate payment of the fees is not intended to be "waived"

by the school.
(4) Accordingly, a "waiver of payment of fees" for maintenance of student status
purposes is found to have arisen where a school permitted the respondent to register
and attend classes for two successive semesters even though the required fees had not
been paid, where respondent in fact continued with his studies, and where no evidence
was offered that the school did not consider respondent to be a student in good
standing.
CHARGE:

Order: Act of 1952—Sec. 241(a)(9) [8 U.S.C. 1251(a)(9)j—Nonimmigrant student—
Failed to comply with conditions of nonimmigrant status
ON BEHALF OF RESPONDENT:
BY:

Pro se

Milhollan, Chairman; Menials, Appleman, Maguire, and Farb, Board Members

The Service appeals from the November 29, 1979, decision of the
immigration judge ordering deportation proceedings against the respondent terminated. The appeal will be dismissed.
The respondent is a native and citizen of Iran, who entered the
United States as a nonimmigrant student in August 1978. He apparently reported to the Miami District Office before December 31,
1979, concerning his residence in this country and the maintenance of
his student status as was required by 8 C.F.R. 214.5 (effective
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Interim Decision 11 2788

November 13,1979; amended December 17, 1979). Documents issued by
the university the respondent was attending reflected that he was
"currently enrolled as a student at [the school]," but that he had not
paid the $2,840 fee for the current term of enrollment. The school
indicated that this balance was "due and payable."
On November 20, 1979, the Service issued an Order to Show Cause
charging the respondent with being deportable under section 241(a)(9)
of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(9), as a
nonimmigrant who failed to comply with the conditions of the nonimmigrant status under which he was admitted. It was alleged that this
failure to maintain his nonimmigrant status arose because he "failed
to comply with tuition requirements at the school [he was] authorized
to attend."
At the deportation hearing on November 29, 1979, the respondent
testified that he was then enrolled in the university he was admitted
into this country to attend. He stated that he had not been able to pay
his fees at the school, but intended to do so when funds became
available. He further indicated that he had not paid his fees the prior
semester, but that the university decided to go ahead and registerhim
for the current semester because of his financial problems' and to allow
him to continue with his studies. On these facts (which the Service did
not dispute), the immigration judge concluded that the Service had
failed to establish by clear, convincing, and unequivocal evidence that
the respondent had violated his student status.
The Service appeals. It is stated that 8 C.F.R. 214.b(a)(2) requires
Iranian students to "exhibit proof of payment of fees or a waiver
thereof," that this student has failed to exhibit such proof, that the
failure to comply with the requirements of 8 C.F.R. 214.5(a) is considered a violation of the nonimmigrant's stay under S C.F.R. 214.5(b),
and that the respondent is accordingly deportable under section
241(a)(9) of the Act.

8 C.F.R. 214.5(a) required Iranian students to appear before a Service officer on or before December 31, 1979, to verify their nonimmigrant student status. Each student was required to have in his or
her possession at the time of reporting various documents, including
"[e]vidence from the school of enrollment and payment of fees or
waiver of payment of fees for the current semester." 8 C.F.R. 214.5(h)
specified that failure to comply with the provisions of 8 C.F.R. 214.5(a)
would be considered "a violation of the nonimmigrant's stay in the
United States and [would] subject him or her to deportation proceedThe respondent testified that he was aware that he was not permitted to work
without Service permission. The Service did not allege that the respondent had engaged
in any employment to support himself.
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Interim Decision #2788
ings under Section 241(a)(9) of the Act" The purpose of the reporting
requirement was to comply with President Carter's November 10, 1979,
directive to the Attorney General "to identify any Iranian students in
the United States who [were] not in compliance with the terms of their
entry visas, and to take the necessary steps to commence deportation
proceedings against those who [had] violated applicable immigration
laws and regulations."
We will resolve this appeal based upon our interpretation of the
phrase "payment of fees or waiver of payment" found in 8 C.F.R.
214.5(a). The Service urges a strict interpretation of this language (i.e.,
a student is out of status if he or she fails to make a payment which the
school indicates will have to be paid). The immigration judge takes a
less "fiscal" and more pragmatic view of what the words should be
construed to mean (i.e., that a "waiver" of fees for maintenance of
status purposes should be presumed to have been granted if the school
allows the student to continue with his or her studies, even though
ultimate payment of the fees is not intended to be "waived").
In vihw of the purpose which gave rise to the regulatory reguirements set forth in 8 C.F.R. 214.5, we find the immigration judge's
position to be the more persuasive of the two. The Service does not
allege that the respondent's school does not consider him to be a
student in good standing. It is uncontested in fact that he has continued his studies and that the school has permitted him to register
and attend classes for two successive semesters even though the required fees have not been paid. We believe that this permission to
register and attend school is in fact a "waiver of payment of fees for
the current semester" insofar as those words pertain to the bona fides
of the respondent's student status. We do not find the fact that the
school has not "waived" the student's ultimate financial obligation to
be particularly relevant to the issue of the respondent's status as a
bona fide student so long as the school is willing to allow the student to
continue with a full course of study as required under 8 U.S.C.
214.2(f)(1) and the student does not otherwise violate the conditions of
his stay. Accordingly, the Service appeal from the immigration judge's
order terminating deportation proceedings will be dismissed_
ORDERS The appeal is dismissed.

360


Interim DeCisiOnl#1.014

- num or Prruoevo
In Section 212(e). Proceedings
A-12975952.
Decided

by . District Director December .11, .1964

,

A native and citizen of Turkey, whose initial application for waiver of the

2.-*
yearforeiga-residence 'requirement of section 212(e), Immigration and Nationality Act as amended, was dehied for 'anal* to establish exceptional

hardship to his United States citizen wife; who, with his wife, departed to
Canada In aline 1952 with the intention of complying with the foreign-residence rtemiramant: and who was advised -upon completion of 2 years' residence in Canaaa that such residence had not served the purpose and intent of the Mutual Edudatiohal and Cultural Exchange Act, is granted. a
waiver of the foreign-residence requirement since compliance therewith would'.
Impose eXceptional hardship upon his United States-citizen child born in
Canada November 17, 1963, who will require extensive medical care and
surgery to correct a congenital physical defect
•
The applicant, Doctor. Stepan Petuoglu is

S.

thirty-three year old'

y. He was first ad
. male physician, a native and citizen of Turke
mitted to the United States as an exchange.visitor on June 28, 1957,
for an internship and residency in medicine. From 1957 to 1958 he
was an intern at Bergen Pines County Hospital, New Jersey; from
1958 to 1961 he was in residency at Missouri Pacific Hospital, St..
Louis, Missouri; and from 1961 to 1962 he was in training in hematology at Baylor University Medical Center, Dallas, Texas. Doctor
Petuoglu departed from the United States and entered Canada in
June 1262. He was accompanied by his United States citizen wife,
Norma Jean Petuoglu, whoM he married on October 8, 1961. The
applicant and his family have resided in Canada since June 1952.
On October 29, 1962, Doctor Petuoglu submitted an application for
a waiver of the requirements of section 212(e) ; however, exceptional
hardship could not be established at that time and the application
was denied.
Ms departure from the United States in June 1962 to Canada. was
made, with the intention of complying with the two-year foreign
residence requirement. Upon completion of two years of. residence
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Interim Decision *1418
in Canada, Doctor Petuoglu applied for his visa and on September
1, 1964, was advised that his "residence in Canada has not served
the purpose and intent of the Mutual Educational and Cultural Exchange Aet".
The applicant now has a minor United States citizen child, Diane
Sena Petuoglu, who was born in Canada on November 17, 1988.
Evidence presented by the attending physician shows the child was
born with a physical defect referred to as Pierre Robin Syndrome,
which is characterized by cleft patate and receding lower jaw. The
child- will require extensive medical care and surgery to correct her
condition. The applicant states that ha has been offered a good position in St. Louis, Missouri, which will provide adequate salary
and medical facilities to secure whatever medical treatments are required for his daughter.
Satisfactory evidence .of Doctor Petuoglu's marriage to a, United

States citizen and the birth of his child have been presented.
In view of the foregoing, it has been determined that compliance
with the foreign residence requirement of section 212(e) of the Act
would impose exceptional hardship upon the applicant's United
States citizen child. The Secretary of State has recommended that
the foreign residence requirement be waived. Therefore, the following order is entered.
ORDER: It is ordered that the application of Doctor Stepan
Petnoglu for a waiver of the two-year foreign residence requirement
of section 212(e) of the Immigration and Nationality Act be and is
hereby granted pursuant to the authority contained in the statute.

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