VALBUENA

Interim Decision #2413




                            MATTER OF VALBUENA
                           In Deportation Proceedings
                                     A-20045995
                        Decided by Board July 2.4, 1975
Respondent, who was admitted to the United States temporarily as a sheepherder on the
 basis of an approved visa petition filed by the Western Range Association, and who,
 after being laid off because his employer did not have enough work for him to do, took
 employment outside the Association and outside the industry which had petitioned for
 him, has violated the conditions of his nonimmigrant status and is subject to deportation
 under sectio 241(a)(9) of the Immigration and Nationality Act. Notwithstanding a
 contract between the petitioning Association and respondent may have contained a
 provision requiring action by the Immigration and Naturalization Service to attempt to
 transfer respondent to another association or employer if efforts of the Western Runge
 Association or respondents to do this failed, the Service is not bound by such provision
   . 1PP it was rot a party to the contract and would not have had any authority to seek
 SIT
  other employment for the respondent.
CHARGE:
 Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9)]—Failed to comply with
                       conditions of nonimmigrant status—sheepherder.
ON BEHALF OF RESPONDENT: Gerald L. McVey, Esquire
                               30 Hotaling Place
                               San Francisco, California 94111

   This case has been certified to us by the immigration judge, who
terminated aroceedingb against the respondent on November 10, 1972
in reliance upon our decision in Matter of Garde-Mugueta, A-17290404,
unreported (BIA May 4, 1957). The Immigration and Naturalization
Service did not appeal from the immigration judge's decision. We shall
reverse the immigration judge's decision and remand the case to him for
reopened proceedings.
   The alien respondent is a native and citizen of Spain who was
admitted temporarily as a sheepherder on April 29, 1970. He was the
beneficiary of an approved visa petition filed by the Western Range
Association (hereafter the ASsociation). He worked for several members of the Association until May 1972, when he was laid off because his
employer did not have enough work for him to do. When he sought a
new placement from the Association, he was informed that he would
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have to go north. Fearing a recurrence of the ill health he had experienced previously when he had gone north to work, he requested an
assignment in California but was told there was no work there. He then
tried unsuccessfully to find employment as a sheepherder on his own,
finally accepting a position on a cattle ranch. In October 1972 he again
approached the Association, requesting work as a sheepherder, but was
told that his case was in the hands of the Immigration and Naturalization Service.
   The immigration judge terminated these proceedings on the basis of
our decision in Matter of Garde-Mugueta, supra, another case involving
a sheepherder and the Western Range Association. In that opinion we
quoted from the contract between the Association and the herder, which
contained a provision requiring action by the Immigration and Naturalization Service to attempt to transfer the herder to another association or employer if the efforts of the Western Range Association and the
herder to do this failed. In that case we terminated proceedings on the
ground that this provision had not been complied with. We now recede
from our holding in Matter of Garde-Mugueta, supra.
   The contract between the respondent and the Western Range Association is not part of the record. Regardless of whether it was identical
with the contract referred to in Garde-Mugueta, it is clear that the
Immigration and Naturalization Service was not a party to it. The
Service was thus not bound by its provisions, and would not have had
any authority to seek other employment for the respondent.
   The respondent admits that he took employment outside the Association and outside the industry which had petitioned for him. This is
clearly a violation of his status. We shall remand the case to the immigration judge for the entry of a new decision and for the consideration of
any applications for discretionary relief which may be made.
    ORDER: The decision of the immigration judge is reversed, and the
case is remanded to the immigration judge for. further proceedings in
accordance with the above opinion.




  1 Board Member Irving A. Appleman abstained. froni 'consideration of this case.


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