HALABI

                                                          Interim Decision #2322




                              MATTER OF HALABI
                           In Deportation Proceedings
                                , A-19931274
                      Decided by Board October 8,            974

Respondent was initially charged with failure to comply with the conditions of his nonimmigrant status under section 241(a)(9) of the Immigration and Nationality Act. He
 denied deportability under the charge. After the date the order to show cause was
 issued, but prior to the hearing date, the respondent's authorized period of stay
 expired. Respondent was found deportable under section 241(a)(2) of the Act on a
 remained longer charge which was lodged at the hearing.
CHARGES:
  Order: Act of 1952 —Section 241(a)(9) [8 U.S.C. 1251(a)(9)] —Nonimmigrant--Failed to
                         comply with conditions of nonimmigrant status
  Lodged: Act of 1952—Section 241(a)(2) [8 !MC. 1251(a)(2)1—Nonimmigrant-
                     .  Remained longer than permitted.
Ole BERALW or RE.spcminvaT: David F. Aberson, Esquire
                                    1801 Avenue of the Stars, #900
                                 . Los Angeles, California 90067


  In a decision dated February 23, 1973, the immigration judge found
the respondent deportable on the lodged charge, but granted him the
privilege of departing voluntarily from the United States in lieu of
deportation. The respondent has appealed from that decision. The
peal will be dismissed.
  The respondent is an alien who is a native and citizen of Lebanon. He
entered the United States as a nonimmigrant student and was au
thorized to remain until January 26, 1973. On November 29, 1972, an
order to show cause was issued charging the respondent with being
deportable under section 241(a)(9)"of the Immigration and Nationality
Act for failure to comply with the conditions Of his nonimmigrant status.
  A hearing was held on February 9, 1973, at which the respondent
admitted the first four factual allegations of the order to show cause,
denied the fifth allegation, denied deportability, and refused to answer
questions regarding deportability. The trial attorney then lodged a
factual allegation, number six, that the respondent had not departed
from the United States. He also lodged the charge that the respondent

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was deportable under section 241(a)(2) of the Act for having remained in
the United States longer than permitted. The hearing was adjourned at
the respondent's request.
  At the continued hearing held on February 23, 1973, the respondent
admitted the lodged factual allegation, but denied deportability on the
lodged charge. We agree with the immigration judge that deportability
on the lodged charge has been established by evidence that is clear,
convincing, and unequivocal.
  The respondent contends that he has been deprived of a hearing on,
and an oppormity to defend against, the "out of status" charge. However, he has not shown how he was prejudiced by the failure of the
Government to pursue that charge.
  The present case is not like Matter of Siffre, 

 (BIA
1973). In Siffre, we held that deportability of an alien on a "remained
longer" charge under section 241(a)(2) cannot be sustained where the
charge was brought prior to the expiration of the alien's authorized
period of stay. In the case before us, however, the "remained longer"
charge was properly lodged after the expiration of the respondent's
authorized period of stay. The respondent received adequate notice of,
and an opportunity to defend against, the lodged charge.
  The respondent asserts that he is not deportable on the "remained
longer" charge because at the time his visa expired he was "under
docket control" with a hearing pending on his violation of status. The
respondent was not detained or held on bond pending hearing. He was
free to leave the country at any time prior to the commencement of his
hearing. The pendency of deportation proceedings does not entitle a
nonimmigrant to an extension of his authorized stay in order to attend
the scheduled hearing.
   The respondent did not apply for an extension of his student stay. He
claims that by charging him with being out of status the district director
in effect precluded him from submitting an application for an extension.
The question of whether or not a student stay should be extended is a
matter within the sole discretion of the district director. See 8 CFR
103.1(f); 8 CFR 214.2(0(5); 8 CFR 214.2(0(7); Matter of Sourbis, 

 (BIA 1965). Neither we nor the immigration judge has any
authority to consider a claim that the district director did not give the
respondent a proper opportunity to apply for an extension.
  Finally, the respondent contends that 22 CFR 41.122(e), a Department of State regulation, prevents the expiration of a nonimmigrant's
authorized stay while deportation proceedings are pending. The short
answer to this contention is that the regulation in question is not
applicable to this case.
   The immigration judge's decision was correct. The appeal will be
dismissed.
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  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 28 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.

Maurice A. Roberts, Chairman, dissenting:

   I respectfully dissent. It seems to me that the respondent was denied
due process by the procedures here employed.
   The respondent was admitted as a. nonimmigrant student until
January 26, 1973. Before that period expired, an order to show cause
was issued on November 29, 1972, charging him with failure to comply
with the conditions of his nonimmigrant admission. Had the hearing
been promptly held, the Service wouldhave been required to prove that
charge; a "remained longer" charge could not then be sustained, Matter
of Siffre, 

 (BIA 1973). By holding the hearing after
January 26, 1973 and then lodging a "remained longer" charge, the
Service was able to avoid proving its original accusation and to confront
respondent with one to which there could be no defense. This "heads I
win—tails you lose" procedure was prejudicial to the respondent.
   We may not presume that the Service would have been able to prove
the charge contained in the order to show cause; conceivably, the respondent might have been able to show that he had not violated his
student status. By thus switching charges after respondent's remaining
beyond January 26, 1973 was a fait accompli, the Service put him in a
position where, conceivably without fault, he was defenseless. This is
not due process.
   It is no answer to say, as does the Board opinion (p. 2), that the
respondent was free to leave the country at any time prior to the
commencement of his hearing. If the respondent felt he had a defense to
the charge in the order to show cause, there was no reason for him to
leave the country before his authorized stay expired without contesting
the charge and then seeking an extension of student stay if the charge
should not be sustained.
   It would have been futile for him to apply for an extension of his
student stay, once the order to show cause was issued. The district
director's issuance of the order to show range on the "failed to maintain
status" charge within the period of admission constituted a preliminary
finding by that officer that prima facie the respondent was out of status.
Since maintenance of status is a prerequisite to an extension of stay, the
district director's action in issuing an order to show cause effectively
blocked a timely extension application. I do not think an alien under
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such circumstances should be expected to file an extension application
anyway, just in case the "failed to maintain status" charge turns out not
to be sustained at the hearing.
   It is also no answer, in my estimation to say that "The question of
whether or nc• a student stay should be extended is a matter within the
sole discretion of the district director." (Opinion, p. 3; emphasis in
original.) That statement would be germane if no order to show cause
had been issued and an extension application had been timely made and
denied. On the other hand, where as here a "failed to maintain status"
charge is used, there is no reasonto believe that•f it is .not sustained at
the hearing the district director will in any event deny an extension
application. Conceivably, if the deportation hearing had been held before January 26, 1973 and the immigration judge had not sustained the
charge, the district director would have accepted the holding, the respondent would have filed a timely extension application, and the district director would have granted it. Respondent was deprived of this
opportunity of applying for an extension of stay when the hearing was
held after January 26, 1973 and the original charge was abandoned.
   I would remand to give the Service the opportunity to elect either to
prove the original "failed to maintain status" charge or to terminate the
proceedings .i.nd give the respondent • a chance to file an extension
application.




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