A-6244791.
Decided by Board December 15, 1954
Student — Proper deportation charge under Immigration and Nationality Act when admitted under section 4 (e) of the Immigration Act of 1924 — Savings clause does not permit charge under the 1924 act after December 24, 1952, but does preserve status acquired thereunder.
(1) A student who was admitted to the United States in 1946 as a nonquota immigrant under section 4 (e) of the Immigration Act of 1924 and who is not maintaining status is properly charged under the Immigration and Nationality Act with being deportable under section 241 (a) (2) as one who is in the United States in violation of that act or any other law of the United States; or under section 241 (a) (9) as one who was admitted as a nonimmigrant who has failed to maintain the nonimmigrant status in which he was admitted.
(2) The definition of "student" as a nonimmigrant in the Immigration and Nationality Act supersedes the terminology of the 1924 act which classified him as a "nonquota immigrant" and the savings clause of the former act continues the status of student regardless of the technical category into which students may fall.
CHARGES:
Warrant: Act of 1924, as continued by section 405 of the Immigration and Nationality Act — Student, remained longer.
BEFORE THE BOARD
Discussion: Respondent is 31 years old, male, a native and citizen of Lebanon, whose only entry into the United States occurred on February 28, 1946, at which time he was admitted as a student under the provisions of section 4 (e) of the Immigration Act of 1924. He was granted extensions of stay until August 2, 1952. He has been in unauthorized employment since that time. The special inquiry officer found him deportable on the charge stated in the warrant of arrest. He denied his application for suspension of deportation and granted him voluntary departure. The alien appeals to this Board from that decision.
This case presents the question, what is the proper provision of law under which to lodge a charge in deporting an alien who entered the United States as a student under section 4 (e) of the 1924 act? The charge set forth in the warrant of arrest is that respondent is in the United States in violation of the Immigration Act of 1924, as amended, and section 405 of the Immigration and Nationality Act, in that he has failed to comply with the conditions of the status granted him at the time of his admission. When this warrant of arrest was issued on March 25, 1954, the Immigration Act of 1924, as amended, was no longer in effect, having been superseded by the Immigration and Nationality Act on December 24, 1952. It was not appropriate to lodge a charge under the 1924 act after December 24, 1952. Nor is the charge saved by section 405 of the Immigration and Nationality Act, the savings clause section. That section saves warrant proceedings, rights, actions, liabilities, etc., in existence "at the time this (Immigration and Nationality) Act shall take effect." The savings clause did not operate to keep alive the 1924 act, which clearly had been repealed by Congress. New proceedings must be based on the deportation provisions of the supplanting statute.
There are two appropriate provisions of the Immigration and Nationality Act under which to lodge a charge in this type of case. First is section 241 (a) (2), which provides for the deportation of any alien who "is in the United States in violation of this Act or in violation of any other law of the United States." Respondent is in the United States in violation of the student status in which he was admitted. Further, his intent is to remain permanently and he has never been lawfully admitted for permanent residence under this or any other law. Therefore, he is in the United States "in violation of this Act," as set forth in section 241 (a) (2).
The charge might have been lodged under section 241 (a) (9) of the 1952 act which provides for the deportation of one who "was admitted as a nonimmigrant and failed to maintain the nonimmigrant status in which he was admitted." Respondent was admitted to the United States under section 4 (e) of the 1924 act which classified students as "nonquota immigrants." The result of section 101 (a) (15) (F) of the 1952 act is that a student is a "nonimmigrant." The subsection defining "nonquota immigrants" (section 101 (a) (27)) does not now include students.
Immigration Act of 1924, Sec. 4. When used in this Act the term "nonquota immigrant" means — * * *
( e) An immigrant who is a bona fide student * * *.
Section 101 (a) As used in this Act — * * *
(15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens — * * *
(F) an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study at an established institution of learning or other recognized place of study in the United States, particularly designated by him and approved by the Attorney General after consultation with the Office of Education of the United States, which institution or place of study shall have agreed to report to the Attorney General the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn.
It is our opinion, however, that respondent can be found deportable under section 241 (a) (9) of the 1952 act. The definition section of the act provides that a student shall be a "nonimmigrant," and this definition supersedes the terminology of the 1924 act which classified him as a "nonquota immigrant." The savings clause provision of the Immigration and Nationality Act continues the status of "student," regardless of the technical category into which students may fall. Since students are now "nonimmigrants," we find that the term "nonimmigrants" under section 241 (a) (9) includes those admitted to the United States in student status under the 1924 act, regardless of how they were then classified. Therefore, an appropriate charge would have been that after admission as a student under section 4 (e) of the Immigration Act of 1924, as amended, respondent failed to maintain the conditions of the status in which he was admitted, and is deportable under section 241 (a) (9) of the Immigration and Nationality Act.
Section 241 (a) of the 1952 act provides in pertinent part:
Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who — * * *
(9) was admitted as a nonimmigrant and failed to maintain the nonimmigrant status in which he was admitted or to which it was changed pursuant to section 248, or to comply with the conditions of any such status * * *.
The savings clause, section 405 (a) of the 1952 act provides in pertinent part:
Nothing contained in the Act, unless otherwise specifically provided therein, shall be construed to * * * affect * * * any status, * * * existing, at the time this Act shall take effect * * *.
The record must be reopened in order that an appropriate charge may be lodged.
Order: It is ordered that the record be reopened in order that the appropriate charge may be lodged in accordance with the foregoing opinion.