SIFFRE

Interim Decision #2230




                             MATTER OF SIFFRE

                        In Deportation Proceedings

                                  A-19016937

                  Decided by Board September 20, 1973
Deportability of an alien on a "remained longer" charge under section 241(a)(2) of
 the Immigration and Nationality Act cannot be sustained where the charge is
  brought prior to the expiration of the alien's authorized period of stay; where an
  alien, within the authorized period of his stay, violates one of the conditions of
  his admission, deportation proceedings can be properly instituted under section
  241(a)(9) of the Act.
CHARGE:
  Order: Aot of 1952—Section 24.1(a)(2) US U.S.C. 1251(a)(2)I—Nonimmigrant
                           student—remained longer.

  The immigration judge, in a decision dated May 14, 1973,
found the rempundent deportable as charged, ordered his deportation  to Nigeria, but afforded him the privilege of voluntary
 departure. The respondent appeals from that order. The appeal
will be sustained.
   The respondent is a 26-year-old married male, a native and
citizen of Nigeria. He was admitted to the United States as a
nonimmigrant student on or about May 31, 1972, authorized to
remain until April 1, 1973.
   On January 2, 1973, the District Director served a form letter
upon the respondent. The letter, on Form 1-210, advised the
respondent that "In accordance with a decision made in your case
you are required to depart from the United States on or before
February 2, 1973." There was nothing on the Form 1-210 to
indicate that the respondent had allegedly violated the conditions
of his student status.
  On February 9, 1973, an Order to Show Cause was issued
charging the respondent with being deportable under section
241(aX2) of the Immigration and Nationality Act as a nonimmigrant who remained longer than permitted. The Order to Show
Cause recited that the respondent's status "was revoked" on
January 2, 1072, and that he had been "required" to depart by
February 2, 1973, but had failed to do so.

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                                           Interim Decision #2230
  The issue in this case is whether the respondent is deportable
under section 241(a)(2), as a nonimmigrant who remained longer
than permitted, for failure to depart pursuant to the District
Director's "revocation" of his student status prior to the expiration
of his period of authorized stay.
  Section 241(aX2) renders deportable any alien "in the United
States in violation of [the Immigration and Nationality Act] or of
any other law of the United States." A charge lodged under this
section is proper in the case of a nonimmigrant student who has
remained longer than permitted. The deportability of an alien who
fails to maintain the status in which he was admitted or to comply
with the conditions of that status is provided for under a different
provision, section 241(a)(9). We note that the Order to Show Cause
upon which the present deportation proceedings are based does
not allege that the respondent was out of status.
  The crucial fact in this case is that the respondent originally had
been given permission to remain in the United States until April 1,
1973. Once a nonimmigrant has been admitted for a fixed period,
within that period his stay is not unlawful unless by his own
conduct he violates one of the conditions of his admission. If he
does, then his right ro remain terminates, not by revocation on the
part of the District Director, but by his own act. If the District
Director had reason to believe the respondent was out of status, he
could have instituted deportation proceedings under section
241(aX9) based upon that allegation. The Service then would have
had the burden of proving the charge, in a due process hearing, by
clear, convincing and unequivocal evidence. The District Director's
order that the respondent leave before the terminal date of his
stay, in the form of a fiat or conclusion on a Form 1-210, without
more, does not establish deportability for violating conditions of
nonimmigrant status.
  In the alternative, rather than confronting the issue of whether
or not an alien is out of status, the District Director has the option
of foregoing any attempt to oust him before the expiration of the
period originally authorized, but denying him an extension of stay
thereafter. Then if the alien fails to depart, the District Director
may properly initiate deportation proceedings under section
241(a)(2) based upon the alien's remaining longer than permitted.
  In the present case, the basis of the Order to Show Cause is that
the respondent failed to depart by February 2, 1973, not by April 1,
1973. We find, therefore, that the charge is not sustained. If the
Order to Show Cause is based on an underlying notion that the
respondent had failed to maintain his status, the simple fact is
that it neglects to state this fact. An alien is entitled to know the
correct ground upon which his deportation is being sought.
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Interim Decision #2230
  The respondent's authorized stay in the United States expired
on April 1, 1973, even prior to the immigration judge's decision in
this case. If his stay has not been extended in the interim, he
should be given a reasonable period of time, to be fixed by the
District Director, within which to depart. If he does not so depart,
he may become deportable for remaining longer than permitted,
and a new Order to Show Cause may then be issued.
  ORDER: The appeal is sustained and the proceedings are
terminated.




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