0300-466229.
Decided by Board July 23, 1954.
Status — Section 101 (a) (15) (B) of Immigration and Nationality Act — Failure to comply with conditions under which admitted — Section 241 (a) (9) of the act — Actual employment not necessary for finding deportability.
An alien who was a bona fide nonimmigrant under section 101 (a) (15) (B) of the Immigration and Nationality Act at the time of his admission to the United States has failed to maintain the status under which he was admitted when he obtains a social security card; registers for employment; and testifies that he intends to work in the United States. Such activity is inconsistent with and not essential to the status of a temporary visitor for pleasure and renders him deportable under section 241 (a) (9) of the act even though he has not actually engaged in employment.
CHARGE:
Warrant: Section 241 (a) (9) — Act of 1952 — Failed to comply — Visitor for pleasure, under section 101 (a) (15) (B) of the act.
BEFORE THE BOARD
Discussion: The case comes forward pursuant to certification of the order of the special inquiry officer entered May 28, 1954, directing that the proceedings be terminated.
The record relates to a native and citizen of Haiti, 20 years old, male, who entered the United States at the port of San Juan, P.R., on May 14, 1954, by plane. He was admitted as a temporary visitor for pleasure under section 101 (a) (15) (B) of the Immigration and Nationality Act for a temporary period expiring on August 14, 1954. The entry has been verified.
In a sworn statement to an immigration officer on May 25, 1954, the respondent admitted that he took out a social security card on May 22, 1954. Apparently the immigration officer apprehended the respondent on May 25, 1954, at an employment agency. The respondent denied making an answer in the statement to the effect that he was looking for any kind of a job he could get and hoped to earn about $25 per week but admitted that the rest of the statement was correct. A subsequent question indicates that the respondent intended to work in the United States for 3 or 6 months or as long as he remained. However, the respondent did not accept any employment or engage in any work although he indicated that he was prepared to accept employment, if offered.
There is no doubt that the respondent at the time of his entry was a bona fide temporary visitor for pleasure as specified in his nonimmigrant visa under section 101 (a) (15) (B) of the Immigration and Nationality Act. The question presented is whether he has failed to comply with the conditions under which he was admitted. The conditions of nonimmigrant status are set forth in section 214.2, Title 8, Code of Federal Regulations. Subsection (a) requires the alien to maintain the particular nonimmigrant status under which admitted. Subsection (c) provides:
That while in the United States he will not engage in any employment or activity inconsistent with and not essential to the status under which he is in the United States unless such employment or activity has first been authorized by the district director or the officer in charge having administrative jurisdiction over the alien's place of temporary residence in the United States.
In the instant case while the respondent actually did not engage in any employment, he did obtain a social security card and when apprehended was present at an employment agency and has testified that he intended to work in the United States. Was this an activity inconsistent with and not essential to the status under which the respondent was in the United States? The term "pleasure" as used in section 101 (a) (15) (B) of the act refers to the purpose of an alien who seeks to enter the United States temporarily as a tourist or for some other legitimate purpose, including amusement, education (other than some activity which would make him classifiable as a student or teacher), health, rest, or visits with relatives or friends (22 C.F.R. 41.40 (c)). It is apparent that the action of the respondent in obtaining a social security card and registering for employment was inconsistent with the status under which he was admitted.
The special inquiry officer has held that the conduct of the respondent in the instant case and the overt acts performed was not an activity inconsistent with the alien's nonimmigrant status; and has held that the word "activity" as used in 8 C.F.R. 214.2 (c) refers not to behavior indicative of a state of mind, but rather to transactions of business or for other profitable pursuits equivalent or akin to employment. However, the report of the Senate Committee on the Judiciary emphasizes that the temporary visitor class is substantially the same as under the Immigration Act of 1924. Prior regulations implementing the Immigration Act of 1924 provided for the arrest and deportation of a visitor if he evidenced orally or in writing or by conduct an intention to violate or to fail to fulfill any of the conditions of the temporary admission to or extended stay in the United States. In determining whether an alien was a bona fide nonimmigrant the court differentiated between proof of a desire to stay and proof of an intent to stay, indicating that the latter would establish the alien as an immigrant.
8 C.F.R. 119.5 (a) (3).
Chryssikos v. Commissioner of Immigration, 3 F. (2d) 372, 375.
Nothing has been brought to our attention to show that it was previously required that to establish a violation of the status of a temporary visitor for pleasure it was required to go so far as to establish an actual engagement in employment. On the contrary, both the previous regulations and prior court decisions made other activity short of employment evidence of violation of status. This other activity could consist of an express intent to violate status or conduct indicating a violation of status. It is believed that the term "activity inconsistent with and not essential to the status under which he is in the United States" refers to conduct and intent which previously constituted evidence of violation of status. This conclusion is emphasized by the congressional committee report previously referred to indicating that no change was contemplated in the class of temporary visitors. It is, therefore, concluded that the conduct of the respondent in obtaining a social security card, appearing at an employment office, and the announced intent to obtain work constitute activity inconsistent with his status of a bona fide temporary visitor and that he is subject to deportation on the charge stated in the warrant of arrest.
The respondent's mother is a lawfully resident alien. He testified that he came to this country in order to visit a doctor but that he was not advised by the consul that he would not be permitted to work while in this country. The respondent has indicated that he can defray the expenses of his return to Haiti. He will be permitted an opportunity to depart voluntarily.
Order: It is ordered that the order of the special inquiry officer terminating the proceedings be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time and under such conditions as the officer in charge of the district deems appropriate.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, he be deported pursuant to law on the charge stated in the warrant of arrest.