AOS 後Ｆ１的地位，回答兔子對MATTER OF HOSSEINPOUR 的理解．

大家可能注意到：我很少把人引到移民法上，除非找不到相應REGULATION　或移民局的ＭＥＭＯ．我這個人最佷去解釋法律或判例．原因之一是法律或判例的用詞難懂，含糊，包含有大量的CROSS REFERENCE.稍有不慎，南轅北轍，麵目全非． (其它原因以後有時間再講).
下麵，我試著用中英文對照講一個非常重要的案子（MATTER OF HOSSEINPOUR ）．既是回答兔子，也解答移民司法界對４８５後非移民身份的認識．由於水平有限，難免錯誤很多．　希望英文高手們如: worthit, fas2000, lovewind及專業人士如兔子，radiology，howdy 等指正．
同時，我自己申請置頂，　從而讓更多的人看到．
寫這樣的帖子太費時．由於打字太慢，能不用中文時我盡量不用．今後，如有時間我也許會再寫一個帖子繼續這個話題．．


United States Department of Justice
Board of Immigration Appeals

MATTER OF HOSSEINPOUR

　　　March 5, 1975


本案的啟示.

Where a nonimmigrant respondent indicates his desire to remain in this country permanently, by filing for adjustment of status under section 245 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 Gallares, Interim Decision #2177 (BIA 1972) modified]

（通過申請AOS, 一個非移民明確的表達了他/她想在美國永遠居留的意願.這個行為本身, 並不能構成不能維護他/她的非移民身份的理由. 但是,如果授權居留的時間已過, 並且他/她沒有申請延期或者他/她沒有得他/她要的延期,那麽他/她就應該被遣返.）

ＢＩＡ　判決


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.

(這部分比較清楚,不重要，省)


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 ted an application for adjustment of status. That conclusion was based on language in Matter of Gallares, 14 I. & 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.
(初審移民法官認定被告應該被遣返, 理由是申請了485後他的非移民身份就失效了. 這個決定是基於Matter of Gallares 的語言. 我們現在覺得,在那個案子中我們的語言顯然是過頭了).

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 Sess., 1958 U.S.Code Cong. & Admin.News 3698, 3701. See also 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 7.7(b) (1975).

( 1952 的移民法 SECTION 245中有這樣的語言：　申請ＡＯＳ自然終止他的非移民身份＂，　１９５８年的修改版去掉了這一條．５８年移民法的修改史表明國會知道自然終止非移民身份這個條款．因此，我們隻能認為國會是有意去掉這一條款的)

Moreover, courts have held that a desire to remain in this country permanently in 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.1957); 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 (R.C.1958).

（另外聯邦法庭也多次指出：以合法的方式表達願意在美永久居留的意願並不必然和他／她的合法的非移民身份不一致）

To the extent 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．

（因此，我們決定修改　Matter of Gallares　的語言．　我們現在認為申請了ＡＯＳ　並不一定與維持非移民身份不一致）

Evidence introduced at the hearing indicates that the respondent has been enrolled in school full time since his arrival in 1970 (Exhs. 6a, 6b, 6c, 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 clear, convincing, and unequivocal 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.

（初審的證據表明，被告１９７０注冊全時學生．　被告指出，即使在申請了ＡＯＳ後他仍有意願維持他的學生身份．並且如果有命令讓他離開，他願意在學業完成後回他的家．被告指出他沒有非法打過工．他的家庭資助他和孩子在美的生活費用支出．　移民局僅僅因為他申請了ＡＯＳ就認為失去了學生的身份．我們認為移民局認定他不能維持學生身份從而遞解他的決定缺乏清楚，令人信服和毫無疑問的證據）．

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.

（盡管如此，記錄表明，被告的合法居留期隻到７３年５月２３日．他的合法居留期並沒有延長．因而，被告在這之後可以被遞解就有了清楚，令人信服和毫無疑問的證據）


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).

（被告的律師認為被告不應該因超期居留被遞解，因為是移民局認為他失去身份，從而不給他延期．對此，我們的意見如下：１）沒有證據表明被告申請過延期　２）遞解令是在被告身份過期之後才發的．　３）移民法庭和本上訴委員會無權決定被告的非移民身份是否可以延期．）


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, 11 I. & N. Dec. 335 (BIA 1965).

（被告的律師認為移民法庭應該恢複被告的學生身份．然而，移民法庭並沒有這個權利）．

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

　（最後，我們認為被告應該被遞解，因為他超過了被允許的居留期）

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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