Interim Decision #2313
MATTER OF LAIGO
In Deportation Proceedings
A-20026816
Decided by Board August 13, 1974
A treaty investor is precluded from engaging in unauthorized employment by the provisions of both 8 CFR 214.1(c) and 8 CFR 214.2(e). A treaty investor engaged in the
development of a cultural and trade center, is deportable under section 241(a)(9) of the
Immigration and Nationality Act, as amended, as one who has failed to maintain status
where he engaged in and received substantial commissions for the sale of cemetery
plots.
CHARM
Order:. Act of 195Z—Section 241(a)(9) [8 U.S.C. 1251(4)(9)1—Nonimmigrant changed
to another nonimmigrant status—failed to comply with conditions of changed status.
ON BEHALF or RESPONDENT- ON BEHALF OF SERVICE:
Esther M. Kaufman, Esquire Paul C. Vincent
1823 'L' Street, N.W. Appellate Trial Attorney
Washington, D. C. 20036
Frederick A. Nervo, Esquire
995 Market Street, #1018
San Francisco, California 94103
The alien respondent has appealed from the September 15, 1973
decision of an immigration judge in which the respondent was found
deportable and was accorded the privilege of voluntary departure. The
appeal will be dismissed.
The respondent is a native and citizen of the Republic of the Philippines. She was admitted to the United States in August of 1970 as a
nonimmigrant visitor. In March of 1971 her nonimmigrant status was
changed to treaty investor. There is no issue in this case regarding the
propriety of that change of status. The only questions presented here
concern whether the respondent is deportable under section 241(a)(9) of
the Immigration and Nationality Act as a nonimmigrant who has failed
to comply with the conditions of her treaty investors status.
The Immigration and Naturalization Service alleged that the
respondent violated the conditions of her status by accepting employ-
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Interim Decision #2313
ment for pay as a cemetery plot salesperson. The respondent concedes
both that she received substantial commissions for the sale, on a "pre-need" basis, of cemetery plots, and that this sales work was not within
the scope of her activities as an investor. However, she challenges the
finding of deportability on two grounds. First, she argues that a treaty
investor is not totally precluded from engaging in employment which is
outside the province of an investment, and second, she contends that the
circumstances surrounding her sales work were such that her actions
should not be deemed a violation of the conditions of her status.
The respondent is evidently a woman of considerable wealth. She
was, and perhaps still is, active in the real estate business in the
Philippines. Her principal endeavors in the United States relate to
several corporations which she appears to control and which are engaged in the development of a Philippine cultural and trade center in
San Francisco. She asserts that her involvement in the cemetery plot
business arose out of a strike which affected burials in the San Francisco
-area.
The respondent's testimony was to the effect that several families of
Philippine ancestry contacted her in an attempt to have deceased relatives interred during the course of the strike. The respondent searched
and found a cemetery whose operations had not been suspended. She
thereafter became aware of a lack of adequate planning for death within
the Filipino community in the San Francisco area and began speaking at
Filipino gatherings, stressing the desirability of purchasing cemetery
plots on a "pre-need" basis. She evidently distributed contracts at the
gatherings, and occasionally, if specifically requested, she would visit
the home of a prospective purchaser in order to assist in the preparation
of the contract.
The respondent maintains that she engaged in this activity as a
service to her community. She claims that most of her working hours
were devoted to the development of her investment, and that she spent
at most two to three hours a week on cemetery plot sales work. The
respondent earned commissions of approximately $14,000 for six
months' sales work in 1971, approximately $21,000 for eight months'
work in 1972: and approximately $900 for two and one half months' work
in 1973. 1 Although she earned these large commissions from her sales
work, the respondent maintains that she did not consider herself to be
employed in this field. She, testified that she was unaware that this
activity could be considered a violation of the conditions of her status
and that, not needing the additional income, she would not have con-
1 The Service has not attempted to controvert the respondent's assertion as to the
number of horns which she devoted to her sales work. If, at the meetings which she
attended, she Ai as in fact able to persuade substantial numbers of people to purchase the
burial plots, then her testimony regarding her hours of work is believable.
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Interim Decision #2313
ducted herself as she did if she had been informed of the possible
consequences.
Section 101(a)(15)(E) is the provision of the Act governing the
respondent's treaty investor status. That section describes a treaty
investor as an alien who is in the United States "solely to 'develop and
direct the operations of an enterprise in which he has invested, or of an
enterprise in which he is actively in the process of investing, a substantial amount of capital." In Matter of Udagawa, 14 I. & N. Dec. 578
(BIA 1974), we were required to interpret this language of section
101(a)(15)(E)(ii). In so doing we determined that the section must be
construed within the framework of the entire Act, and we placed considerable importance on the congressional policy, expressed in the Act,
of protecting American labor from competition of an undesirable nature.
Accordingly, we held that the alien in Udagawa could not qualify as a
treaty investor, in part because his prospective job entailed some duties
characteristic of positions occupied by skilled laborers. It is therefore
clear that a treaty investor is statutorily limited in the type of economic
activities in which he may engage.
The employment of nonimmigrants, including treaty investors, is also
governed by regulations. The pertinent portion of 8 CFR 214.1(c)
states:
A nonimmigrant who is permitted to engage in employment may engage only in such
employment as has been authorized. Any unauthorized employment by a nonimmigrant
constitutes a failure to maintain status within the meaning of section 241(a)(9) of the
Act'.
The regulation which is specifically applicable to treaty investors, 8
CFR 214.2(e), also addresses the question of employment. It reads, in
part:
A trader or investor may change from one employer to another only if his request for
permission to do so has first been approved by the district director having jurisdiction
over his residence. The request shall be supported by evidence that the requester would
still be classifiable as a trader or investor in the new employment. . . . Any unauthorized change to a new employer shall constitute a failure to maintain status within
the meaning of section 241(a)(9) of the Act.
This portion of 8 CFR 214.2(e) was not effective until several months
after the respondent began her sales work. 3 However, it was in effect
during the majority of the months in which she earned commissions, and
it was operative in February of 1973 when the respondent recommenced
her sales activities.
These regulations make it plain that a treaty investor may not engage
2 The quoted portion of 8 CFR 214.1(c) was in effect prior to the respondent's commencement of her sales work on June 16, 1971. See 36 Fit 8048 (April 29, 1971).
*See 36 FR 23865 (December 16, 1971).
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Interim Decision #2313
in unauthorized employment. Moreover, we have consistently viewed
unauthorized employment as a failure to comply with the conditions of
an alien's status with respect to other nonimmigrant classifications, and
this view has been endorsed by the courts. See Mastorakis v. INS, 460
F.2d 1283 (C.A. 9, 1972); Gill v. District Director,
426 F.2d 762 (C.A. 9,
1970); Matter of Martinez and Londono, 13 I. & N. Dee. 483 (BIA 1970),
affirmed, London v. INS,
433 F.2d 635 (C.A. 2, 1970); Matter of
Boroumand,
13 I. & N. Dec. 306 (BIA 1969); Matter of Wong,
11 I. & N.
Dec. 704 (BIA 1966); Matter of Vilanova-Gonzalez,
11 I. & N. Dec. 610
(BIA 1966); Matter of Garvey,
10 I. & N. Dec. 519 (BIA 1964); Matter of
S—,
8 I. & N. Dec. 574 (BIA 1960); Matter of B—,
6 I. & N. Dec. 234
(BIA 1954). The respondent was authorized to conduct affairs relating
to her investment; she was not permitted to accept work as a cemetery
plot salesperson.
The only remaining question is whether the respondent's conduct can
be deemed employment for the purpose of this proceeding. In an unreported decision, Matter of Ng Kow Wah, Alt 031 419 (BIA November
30, 1960), concerning the effect of employment on an alien in another
nonimmigrant status, we stated that "[i]f the alien agreed to engage in
gainful employment for pay, regardless of the number of days he
worked, he has violated the terms of the nonimmigrant status under
which he was admitted. . . ."
The work which the respondent performed was not of a casual nature.
While she may not have known that her employment was in violation of
her status, such lack of knowledge, without more, does not preclude a
finding of daportability under section 241(a)(9). See Gill v. District
Director, su;ora. .Even if the respondent did not initially intend to be
employed, the lengthy period of her involvement in this sales work
coupled with the receipt of substantial commis' sions demonstrate the
existence of an unauthorized employinent relationship. A reasonable
person wou:d certainly have , recognized that this was more than a
simple civic project .
We find that the respondent engaged in unauthorized employment.
She therefore failed to comply with the conditions of her treaty investor
status. Deportability has been established by clear, convincing and
unequivocal evidence.
While the:re appears to be some merit in counsel's contention that the
immediate departure of the respondent from the United States would
be undesirable for the Filipino community in San Francisco, this consideration is not germane to our adjudicatory functions. See Matter of
Geronimo,
13 I. & N. Dec. 680 (BIA 1971).
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
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Interim Decision #2313
within 88 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.
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