Interim Decision *1930
MATTER OP BUNAG
In Section 248 Proceedings
A-15809264
Decided by Disfrrict Director December 4, 1967
An alien who upon arrival in 1961 was found to be a stowaway, was ordered
detained on board by the examining immigration officer and was deported
without hearing, was not "arrested and deported" from the United States
within the meaning of section 212(a) (17), Immigration and Nationality
Act, and at the time of his last entry on October 3, 1966 be did not need
permission to reapply under section 212(a) (16) of the Act, more than one
year having elapsed since his exclusion and deportation.
The applicant is a 29-year-old single alien, a native and citizen
of the Philippines. He last entered the United States at Rouses
Point, New York on October 3, 1966 when he was admitted as a
visitor for pleasure. He seeks a change of status to that of a noniramigra.nt student under section 101(a) (15) (F) (i) of the Immigration and Nationality Act, as amended.
Section 248 of the Act provides, so far as pertinent here: "The
Attorney General may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification
to any other nonimmigrant classification in the case of any alien
lawfully admitted to the United States as a, nonimmigrant who is
continuing to maintain that status. . . ." (Emphasis supplied.)
The application is supported by a Certificate of Eligibility,
Form 1-20, and evidence of satisfactory financial arrangements
to meet the applicant's expenses as a student. The application was
filed during the period of his admission. The only issue presented
here is whether the applicant was excludable at the time of his
last entry by reason of his prior deportation from the United
States, no permission to reapply having been granted.
The applicant first arrived at Apra Harbor, Guam, on March
19, 1961 as a stowaway on a United States Naval vessel. Upon
arrival he was presented for immigration inspection on board the
vessel, found inadmissible as a stowaway by the examining immi-
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Interim Decision #1930
gration officer without referral for a hearing by a special inquiry
officer, and ordered detained on board pursuant to section 273 of
the Immigration and Nationality Act. Criminal prosecution was
declined by the United States Attorney. On .March 21, 1961 the
immigration officer ordered that the alien be deported from the
United States, and, at the request of the carrier, directed that the
alien be removed to the MATS terminal for deportation by a
MATS flight to the Philippines. The alien departed from Guam
on March 21, 1961 pursuant to that order.
On August 23, 1962, the alien sought entry into the United
States as a member of the crew of the "SS Tai Ping." He was denied a crewman's landing permit on the ground that he was exclodable under section 212 (a) (17) of the Act as an alien who had
been arrested and deported from the United States. On August
14, 1963, he submitted an application for permission to reapply
for admission after deportation to enable him to pursue his calling as a crewman. That application, the only application for permission to reapply of record, was denied on the ground that he
was not considered a bona- fide crewman.
The classes of aliens subject to exclusion by reason of a prior
"deportation" are defined in section 212 (a) of the Act as foMows
(16) Aliens who have been excluded from admission and deported and
who again seek admission within one year from the date of such deportation, unless prior ^to their reembarkation at a place outside the United
States or their attempt to be admitted from foreign contiguous territory the
Attorney General has consented to their reapplying our admission;
(17) Aliens who have been arrested and deported, or who have fallen into
distress and have been removed pursuant to this or any prior act, or who
have been removed as alien enemies, or who have been removed at Government expense in lieu of deportation pursuant to section 242(b), unless prior
to their embarkation or reembarkation at a place outside the United States
or their attempt to be admitted from foreign contiguous territory the Attorney General has consented to their applying or reapplying for admission;
(Emphasis supplied.)
An alien, other than a crewman whose conditional landing permit may be revoked pursuant to section 252 (b) of the Act, may
be "arrested and deported" from the United States only after an
entry has been made, an order to show cause has been served, a
hearing held before a special inquiry officer, and an order of deportation entered. (Section 242, Immigration and Nationality
Act; and 8 CFR 242). None of these factors was present here.
The summary procedure set forth in section 252(b) of the Act
for the revocation of a conditional permit to land and deportation
without a hearing comes into effect only if the crewman is found
to have violated his crewman status within the period of his ad-
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Interim Decision #1930
mission as a crewman. (See Matter of M—, 5 I. & N. Dec 127.)
In the case of our applicant, there was a denial but no revocation
of a crewman's conditional landing permit.
The subject was, in fact, found by the immigration officer,
upon his arrival at Guam on March 19, 1961, to be an alien and a
stowaway. Hence, he was found to be excludable under section
212 (a) (18) of the Act, and since he was not a lawful resident of
the United States, his detention and deportation without hearing
was ordered by the immigration officer pursuant to section
273 (d) of the Act. (See Matter of B—, 5 I. & N. Dec. 712.) Had
he sought entry within one year of the date of his exclusion and
deportation he would have been excludable under section
212(a) (16). However, he did not do so. He was deported on
March 21, 1961 and did not apply for admisssion into the United
States until August of 1962 more than one year later. Therefore,
section 212 (a) (16) was not a bar to his admission when he applied in August of 1962.
The applicant, an alien stowaway presented for inspection on
arrival in 1961 and deported without hearing pursuant to the detention order of the examining inunigration officer, was not "arrested and deported" from the United States within the meaning
of section 212 (a) (17) of the Act. More than one year having
elapsed since his exclusion and deportation, he did not at the time
of his last entry on October 3, 1966 need permission to reapply
under section 212(a) (16) of the Act. He was lawfully, admitted
as a nonimmigrant on that date, and is eligible for a change of
status to that of a nonimmigrant student. Accordingly, the application will be approved.
It is ordered that the application be and hereby is approved.
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