Interim Decision #2848
MATTER OF YAZDANI
In Deportation Proceedings
A-24218212
Decided by Board February 10, 1981
(1) Operations Instruction 214.2(0(2) recognizes the District Director's power to reinstate a nonimmigrant's lapsed student status, but does not authorize a nonimmigrant
student to transfer schools prior to securing Service permission.
(2) The power to reinstate student status or grant an extension of nonimmigrant stay
lies within the exclusive jurisdiction of the District Director and neither the immigration judge nor the Board may review the District Director's determination.
(3) The regulation prohibiting an alien student from transferring schools without
advance permission from the Service is an essential tool in Service efforts to keep
track of alien students.
(4) A. transfer of schools without Service permission, contrary to regulation, is a distinct
violation of student status in itself which does not permit interpretation or evaluation.
Magi v. INS, 585 F.2d 1309 (5 Cir. 1978); Matter of Murat-Kahn,
14 I&N Dec. 465 (BIA
g 1973); and Matter of C—,
9 I&N Dec. 100 (BIA 1960), distinguished.
(5) A. nonimmigrant student who transfers to a school other than that which she was
authorized to attend without first securing permission from the Service is in breach of
the conditions of her status and is thereby deportable under section 241(a)(9) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(9), even if she acted in good faith.
CHARGZ
Order: Act of 1952—Sec. 241(a)(9) [8 U.S.C. 1251(a)(9)].—Nonimmigrant—failed to
comply with conditions of nonimmigrant status
ON BEHALF OF RESPONDENT. Dana. Marks. Keener, Esquire
Simmons & Ungar
517 Washington Street, Suite 301
San Francisco, California 94111
Br: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
In a decision dated May 2, 1980, an immigration judge found the
respondent deportable under section 241(a)(9) of the Immigration and
Nationality Act, 8 U.S.C. 12&1(a)(9), for failure to comply with the
conditions of her nonimmigrant student status, but granted her the
privilege of voluntary departure in lieu of deportation. The respondent
appealed from that decision. The appeal will be dismissed.
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Interim Decision #2848
The respondent is a 19-year-old native and citizen of Iran who
entered the United States as a nonimmigrant student bound for a
course of study at the University of Utah. She was admitted for the
duration of her student status. Prior to her embarkation for this
country, the respondent had been accepted for admission by both the
University of Utah and the University of San Francisco and had
obtained the requisite Form 1 20, Certificate of Eligibility for Nonim-
-
migrant "F-1" Student Status, from each institution. The Form 1-20
from the University of San Francisco apparently arriyed too late for
the respondent to secure a visa to attend that school, however, and her
visa was issued for attendance at the University of Utah.
The record reflects that upon her arrival in the United States, the
respondent proceeded to the University of Utah, met with the Director
of International Student Services there, and obtained that official's
permission to transfer to the University of San Francisco together
with his signature on her transfer request, Form 1-528. The Form I-588
was submitted with the respondent's Form 1-94 and her Form 1-20
from the University of San Francisco to the Salt Lake City office of the
Immigration and Naturalization Service' The respondent then enrolled at the University of San Francisco, beginning classes on
September 24, 1979.
In December 1979, the respondent reported to the Service's San
Francisco office pursuant to 8 C.F.R. 214.5. These deportation proceedings were thereafter instituted by the issuance of an Order to Show
Cause charging the respondent with deportability for having violated
the conditions of her status by transferring from the school which she
was authorized to attend to another school without obtaining advance
permission from the Service. At the deportation hearing that ensued
on May 2, 1980, the immigration judge found the respondent deportable as charged. The District Director subsequently reviewed the
respondent's file to determine whether she should be reinstated to
student status and on October 17, 1980, decided against reinstatement.
Section 214(a) of the Act, 8 U.S.C. 1 184(a), provides in pertinent part:
The admission to the United States of any alien as a nonimmigrant shall be for such
time and under such conditions as the Attorney General may by regulations
prescribe ...
Under the regulations promulgated by the Attorney General, a
' The 1-538, 1-94 and 1-20 package was transmitted for processing to the Service office
in Raymond, Montana, which returned the package to the respondent for completion of
one of the forms. The respondent supplied the additional information and gent the forme
back to Raymond. The respondent was subsequently informed in response to an inquiry
regarding the status of her application that the package had been returned to the Salt
Lake City office. The forms were apparently lost along the way and it appears that the
respondent's application for permission to transfer was never adjudicated on the merits.
Interim Decision #2848
nonimmigrant student must establish as a condition for admission
that she is destined to and intends to attend the school specified in her
visa. 8 C.F.R. 214.2(f)(2). She may not transfer to another school unless
she submits a valid Form 1-20 completed by that school and the Service
grants her permission to transfer. 8 C.F.R. 214.2(f)(4). The regulations
further provide that a nonimmigrant applying for admission must
agree to abide by all the terms and conditions of her admission. 8
C.F.R. 214.1(a).
On appeal, the respondent through counsel argues (1) that advance
permission to tfaitifer is not required by the regulations, and (2) that
the respondent. is in any event not deportable because she substantially complied with the terms of her status in making application for a
transfer. The respondent's arguments must be rejected.
In support of her first contention, the respondent points to language
in Service Operations Instruction 214.2(f)(2) which she quotes as
follows:
.. if a school transfer has been effected, and the transfer request is submitted to the
office having jurisdiction over the school to which he has transferred, the receiving
office may adjudicate the request unless there is good reason not to do so." (Emphasis
added by the respondent.)
The respondent maintains that the foregoing Operations Instruction
casts doubt upon whether it is necessary for a student, in order to
remain in status, to make application for permission to transfer prior
to transferring schools. We disagree.
As previously noted, 'a nonimmigrant student is admitted for the
purpose of attending a specified school and the regulations expressly
provide that a student shall not be eligible to transfer to another
school unless the Service grants her permission to transfer. 8 C.F.R.
214.2(f). An alien who transfers to a school other than that which she
was authorized to attend without first securing Service permission is
in breath of the conditions of her status and is thereby deportable
under section 241(a)(9).
There is no qUestion but that the District Director in charge of a
Service office may through a retroactive grant of a transfer request
reinstate an alien's student status, and Operations Instruction
214.2(f)(2) recognizes that power.' The power, however, to reinstate
student status or grant an extension of nonimmigrant stay lies within
the exclusive jurisdiction of the District Director and neither the
immigration judge nor the Board may review the propriety of the
District Director's determinations. Matter of Teberoz,15 I&N Dec. 689
The portion of the Operations Instruction quoted by the respondent is jurisdictional,
concerned solely with designating the Service office which may assume jurisdiction over
a given application for transfer.
eno
Interim Decision #2848
(BIA 1976); Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), afd,
520 F.2d 941 (5 Cir. 1975 (tabled case); Matter of Gallares, I&N Dec.
250 (BIA 1972); Matter of Sourbis,
11 I&N Dec. 335 (MA 1965). In the
instant ease, the District Director considered and denied
reinstatement.'
We find the cases relied upon by the respondent as authority for her
alternative argument to be inapposite. At issue in Mashi v. INS,
585
F.2d 1309 (5 Cir. 1978), was the proper interpretation to be given the
statutory requirement that a nonimigrant student "pursue a full
course of study" (see 101(a)(15)(F)(i) of the Act, 8 U.S.C.
1101(a)(15)(F)(i)) under sup erceded regulations which, unlike the present regulations, set forth no specific objective criteria for compliance
with that requirement. Noting that the "12 credit" minimum requirement of the present regulations (8 C.F.R. 214.2(f)(1a)(ii)) did not apply
to Mr. Mashi, the court found that he was in fact pursuing a full course
of study and could not be deported for failure to comply with the
conditions of his statue simply because his academic load briefly
dropped below 12 credits in the course of one semester.
Although the court in Mashi,
id., suggested in dictum that the same
result might be reached on the facts before it under the present
regulations, there is room for interpretation in determining whether
the "12 credit" rule of 8 C.F.R. 214.2(f)(la)(ii) has been satisfied that
does not exist in determining whether an alien has received permission
from the Service to transfer as required by 8 C.F.R. 214.2(f)(4). The
question is whether there has been compliance, not whether there has
been substantial compliance, with the regulation in question.
We likewise find the respondent's reliance on the Board's decisions
in Matter of Murat-Kahn, 14 I&N Dec, 465 (BIA_ 1973), and Matter of
C— ,
9 I&N Dec. 100 (BIA 1960), to be misplaced. We held in those cases
that a student's conviction which does not interfere with her studies so
as to meaningfully disrupt her education does not constitute a failure
to maintain status. The instant case is concerned not with an alleged
disruption of studies but rather with a separate, distinct violation of
status, transferring schools without Service permission, a breach
specifically defined by the regulations.
Finally, we cannot agree with the respondent's characterization of
her failure to secure advance permission to transfer as a "minor,
highly technical" violation of her status. The regulation in question, 8
' Although the District Director gave no reasons for his denial of reinstatement in this
case, it is possible that his decision was based upon a determination, which finds some
support in the record (see Ex. 2, Form I-213), that the respondent never intended to
attend the school specified on her visa. See Operations Instruction 214.2(f)(2). However,
we need not speculate as to the District Director's rationale in view of our lack of
jurisdiction over the question.
Interim Decision #2848
C.F.R. 214.2(f)(4), like other regulations governing the activities of
nonimmigrant students, is an essential tool in the administration of
our immigration laws. The widespread disregard of those regulations
which would likely result from lax enforcement thereof would severely
hamper the Service in fulfilling its responsibilities of keeping track of
the thousands of alien students within our borders and of enforcing
the immigration laws with respect to those students.
We note that the respondent appears to have acted in good faith in
all of her dealings with the Government. However, so long as the
enforcement officials of the Service choose to initiate proceedings
against an alien and to prosecute those proceedings to a conclusion, the
immigration judge and the Board must order deportation if the
evidence supports a findingof deportability on the ground charged. Bee
Lopez-Telles v. INS,
564 F.2d 1302 (9 Cir. 1977); Guan Chow Tok v. INS,
538 F.2d 36 (2 Cir. 1976); Matter of erced,
14 I&N Dec. 644 (BIA 1914).
The respondent admittedly transferred from the school designated
on her visa to another school without first receiving permission from
the Service, an action that constitutes a violation of the conditions of
her nonimmigrant student status and a ground for deportation under
section 241(a)(9) of the Act. We find that deportability has been
established by clear, unecinivocal and convincing evidence on the basis
of the respondent's concessions.
The appeal will accordingly be dismissed. In accordance with our
decision in Matter of Chauliaris,
16 I&N Dec. 168 (BIA 1977), the
respondent will be granted 15 days within which to voluntarily depart
the .United States in lieu of deportation.
ORDER1 The appeal is dismissed.
FURTHER ORDER, The respondent is permitted to depart from
the United States voluntarily and without expense to the Government
within 15 days from the date of this order or any extension beyond that
time as may be granted by the District Director; in the event of failure
to so depart, the respondent shall be deported as provided in the
immigration judge's order.
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