Interim Decision #2797
MATTER OF ITARUGFIESE
In Deportation Proceedings
A-21582322
Decided by Board June 6, 1980
(1) In determining whether or not one has been ordained as a minister and has carried
on the vocation of a minister of a recognized religious denomination, acceptable
evidence includes a letter or other appropriate statement signed by the Superior or
Principal of the religious denomination.
(2) The respondent, a full-time student seeking an adjustment of status, has not established that he qualities tot "special iumligraur status as a min ' ister under section
101(a)(27)(C) of the Immigration and. Nationality Act, 8 U.S.C. 1101(a)(27)(C), when
his work at the church has been of a voluntary nature delegated to him by the
minister.
(3) Although the respondent preaches every other Sunday and sometimes takes the
offering when the deacons do not come to the Service, he has not carried on the
vocation of minister of the church as defined by section 101(a)(21)(C) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(C), when only 9 hours per week are
devoted to church activities, and he is not compensated.
CHARGE:
Orden Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)j—Nonimmigrant—remained
longer than, permitted
ON BEHALF OF RESPONDENT: Pro se
BY: Milhollan, Chairman; Maniatis, Appleraan, Maguire, and Farb, Board Members.
In a decision dated July 25, 1978, the immigration judge found the
respondent deportable as charged, denied his application for adjustment of status under section 245 of the Immigration and Nationality
Act, 8 U.S.C. 1255, and granted him the privilege of voluntary departure in lieu of deportation. The respondent has appealed from that
decision. The appeal will be dismissed.
The respondent is a 38-year-old male native and citizen of India who
was allegedly ordained as a minister in India in 1968. He entered the
United States at New York on August 5, 1973, as a non-immigrant
student authorized to remain until June 20, 1977. On June 24, 1977, the
Church of God Chapel sought to confer preference status upon the
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respondent as a minister.
In a Service interview on September 1, 1977, the respondent averred
that he did not do any work for the Church of God but only attended
worship services. When the petition was approved, however, he would
be the mission director, sending the gospel to other countries and
keeping records.
The District Director predicated his, denial of the petition on the fact
that the respondent had not been employed since his entry on August
5, 1973, and, therefore, had not been primarily engaged in a religious
occupation for 2 years prior to seeking adjustment based upon a labor
certification, as required by 20 C.F.R. 656.22(e).
On appeal to the Regional Commissioner, the decision of the District
Director was affirmed on May 3, 1978. The Regional Commissioner
found that the respondent/beneficiary had not been primarily engaged
as a minister for, the previous 2 years.
On July 11, 1978, an Order to Show Cause was issued charging the
respondent with deportability under section 241(a)(2) of the Act, 8
U.S.C. 1251(a)(2), as an alien who had remained longer than permitted.
A deportation hearing was held on July 25, 1978. The respondent
denied that his student visa had expired on. June 20, 1977, and that he
had remained beyond that date without authorization. He testified
that he started working for the Church of God Chapel in June 1976,
without compensation. His job entailed spending every other Sunday
preaching and leading prayer meetings on Wednesdays. He spent
approximately 9 hours per week at the church. In addition, he maintained 12 semester hours of classroom work at Southwestern College.
Upon adjustment of his status to that of a minister, the Church agreed
to pay him $25 per week for his work as a mission director.
The immigration judge treated his denied visa petition as an application for adjustment of status under section 245 of the Act. He found
the respondent deportable as charged in that the respondent's ArrivalDeparture Card, Form 1 94, clearly indicated that the respondent was
-
authorized to remain in the United States until June 20, 1977. The
immigration judge found that the respondent did not qualify for
adjustment of status as a minister under section 101(a)(27)(C) of the
Act, 8 U.S.C. Ll01(a)(27)(C), inasmuch as he had not been principally
engaged in religious work. He further found the respondent ineligible
for relief under section 245 of the Act based upon section 245(c) of the
Act. Because the respondent had worked without permission of the
Service, he was precluded from adjusting his status pursuant to section 245 of the Act. The respondent was granted 5 months voluntary
departure to complete the fall semester at the university.
On appeal, the respondent contends that 1) his petition should have
been approved, 2) he was unable to extend his stay in the United States
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because the Service had his 1-94, and 3) the law is contradictory in that
a nonimmigrant student cannot work without permission of the Service. Therefore, he could never obtain the requisite 2 years experience.
Pursuant to 8 C.F.R. 3.1(b)(5), this Board is without jurisdiction to
review the denial of a preference petition based upon a profession or
occupation under section 203(a)(3) or 203(a)(6) of the Act, 8 U.S.C.
1153(a)(3) or 1153(a)(6). The respondent may sue for review in the
United States District Court.
In order to establish an alien's deportability as an "overstay," the
Service need only show that the alien was admitted as a nonimmigrant
"... for a temporary period, that the period has elapsed, and that the
nonimmigrant has not departed." Milande v. I.Na 484 F.2d 774, 776 (7
Cir. 1973); Matter of Teberen,
15 I&N Dec. 689 (BIA 1976). It is clear to
this Board that the Service has established that the respondent is an
overstay and is therefore deportable.
The immigration judge erroneously considered the respondent's
eligibility for adjustment of status as if an adjustment application had
been filed. Nevertheless, in order to avoid leaving the respondent in
doubt, through no fault of his own, we shall address the issue of
adjustment of status.
In order to he eligible for adjustment of status, the respondent must
establish that he is eligible to receive an immigrant visa, that he is
admissible to the United States for permanent residence, and that an
immigrant visa is immediately available to hint at the time his application for adjustment is filed. An alien seeking an adjustment of status
to that of a permanent resident is assimilated to the position of an
alien seeking entry to the United States for permanent residence.
Campos v. INS, 402 11.2d 758 (9 Cir_ 1968), cert.. denied,
429 U.S. 999
(1976), citing Amarante v. Rosenberg,
326 F.2d 58 (9 Cir. 1964); Ambra
v. Ahrens,
325 F.2d 468 (5 Cir. 1963).
The respondent has based his application for adjustment of status
on the contention that he is a "minister" of a religious denomination
and thus classifiable as a special immigrant pursuant to section
101(a)(27)(C)(i) of the Act. Section 101(a)(27)(C)(i) defines, in pertinent
part, a special immigrant as:
an immigrant who continuously for at least two years immediately preceding the time
of his application for admission to the United States has been, and who seeks to enter
the United States solely for the purpose of carrying on the vocation of minister of a
religious denomination, and whose services are needed by such religious denomination
having a bona fide organization in the United States.
The Act does not provide a definition of the term minister. State
Department regulation 22 C.F.R. 42.25, however, contains the following elaboration:
(b) The term "minister", as used in section 101 (a)(2t)(C) of the Act, means a person
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duly authorized by a recognized religious denomination having a bona fide organization in the United States to conduct religious worship, and to perform other duties
usually performed by a regularly ordained pastor or clergyman of such denomination.
The term shall not include a lay preacher not authorized to perform the duties usually
performed by a regularly ordained pastor or clergyman of the denomination of -which
he is a member, and shall not include a nun, lay brother, or cantor.
In Matter of Rhee, 16 I&N Dec. 607 (BIA 1978), we reaffirmed our
authority to consider an alien's qualifications for special immigrant
status as a minister of religion under section 101(a)(27)(C) of the Act.
Compare Matter of Wiesinger,
16 I&N Dec. 480 (BIA 1978).
We agree with the conclusion of the immigration judge insofar as he
found that the respondent does not meet the requirements of section
101(a)(27)(C) of the Act. Since his arrival in the United States, until he
sought to adjust his status, the respondent was a full time student.' -
Further, it is unclear as to whether or not the respondent was ever
ordained as a minister in India and carried on the vocation of a
minister of a recognized religious denomination in that country. Acceptable evidence that an individual meets the qualifications of a
minister, when applying for admission to this country, includes a letter
or other appropriate statement signed by the Superior or Principal of
the religious denomination in the United States. The respondent has
merely alleged that he was ordained as a minister in India.
His religious duties, if any, with the Church of God in Oklahoma
City have been of a voluntary nature delegated to him by the minister
of the chnrch. He testified that sometimes he preaches every other
Sunday when the minister doesn't preach, and sometimes he takes the
offering when the deacons do not come to the service. He has been
performing such services without compensation since 1976. The respondent has not carried on the vocation of minister with the Church
of God.' Matter of Rhee, supra; Matter of isulca,
10 I&N Dec. 712 (R.C.
1963).
We agree with the immigration fudge that the respondent, while
earryitig a full-time school schedule, cannot claim 9 hours per week in
church activities as continuously carrying on the vocation of minister
so as to satisfy the requirements of the Aet. Moreover, while failure to
offer proof of his ordination might be corrected if all else were satisfactory, it is immaterial here.
We do not reach the propriety of the immigration judge's finding
8 C.F.R. 214.2(f)(1a) provides that a full course of study at a college consists of at least
12 hours of instruction a week.
Although the church allegedly provided him with a "preaching license," he has not
been ordained by the church (Tr. p. 11). Accordingly, we question whether a preaching
license provided by the Church of God is tantamount to authorization by a religious
denomination, as provided in 22 C.F.R. 42.25(b).
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that the respondent is ineligible to adjust his status in that he was
employed without permission of the Service.
The appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is permitted to depart from
the United States within 30 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.
