HALL

                                                             Interim Decision #2897




                               -MATTER OF HALL

                           In Deportation Proceedings

                                      A-22103%3

                      Decided by Board February 4, 1982

(1)"The respondent, who engages in fund-raising activities as part of his missionary work
  for the Unification Church, is employed within the contemplation of section 245(c)(2) of
  the Immigration and Nationality Act, 8 U.S.C. 1255(c)(2), and, therefore, his employment without the permission of the Inunigration and Naturalization Service bars him
  from adjusting his status in the United States to that of a lawful permanent resident
(2) Where the respondent receives MR support in return for his.inissionary duties, he
  is not an unpaid volunteer in the service of the Church even though he receives no fixed
  salary or remuneration in an amount propOrtional to his success in his work
(3) In the absence of a clear expression of legislative intent, the Board will not conclude that detriment to the American labor force was Congress' sole or even primary
  concern in enacting section 245(c)(2) of the Act: however. where the respondent's activities as a fund-raiser could successfully be performed by persons or business enterprises
  outside the Church and involve the sale of goods, an entrepreneurial undertaking which
  places the Church in competition with other sellers of such goods, it nay not be said that
  those activities are without adverse impact on the United States labor market.
(4) In considering the applicability of section Z45(c)(2) of the Act, the Government does
  not improperly dictate to the Unification Church the permissible scope of its missionaries' duties by isolating the respondent's fund-raising activities from his purely
  ministerial duties; determining the status or duties of an individual within a religious
  organization is a distinct question from determining whether that individual qualifies
  for status or benefits under our immigration laws and authority over the latter determination lies not with any ecclesiastical body but with the secular authorities of the United
  States.
CHARGE:
  Order: Act of 1952—Sec. 200(2) (8 U.S.C. 1251(a)(2)] –Nonimmigrant—remained
                           longer than permitted
ON BEHALF. OP RESPONDENT:                               ON RENALPOPSERVICE!
  David Carliner, Esquire                                 Gerald S. Hdrwitz
  #931 Investment Building                                Appellate Trial Attorney
  1511 K Street, N.W.
  Washington, D.C. 20005
By: Milhollan, Chairman; Menials, Maguire, Morris, 'and Vacca, Board Members


  At a deportation hearing conducted on December 19, .1978, an immigration judge found the respondent deportable as an overstayed nonim-

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Interim Decision #2897

migrant pursuant to section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), and statutorily ineligible for adjustment of
status under section 245 of the Act, 8 U.S. C. 1255, by reason of the
unauthorized employment bar of section 245(e)(2), 8 U.S.C. 1255(c)(2),
but granted him the privilege of voluntary departure in lieu of deportation. The respondent concedes deportability but contests the denial of
section 245 relief.
   At the conclusion of the deportation hearing, as the immigration judge
was stating his decision, the respondent through counsel made an oral
motion to reopen the proceedings to permit further development of the
record with respect to his eligibility for adjustment of stains. The immigration judge declared the hearing closed .and refused to entertain the
respondent's motion to reopen: 1 Subsequent to the hearing, on December 26, 1978, the respondent submitted a formal, written motion to
reopen which the immigration judge denied in a decision dated February 14, 1979. The respondent -appealed from that decision and oral argument in the case was heard by the Board on May 1, 1980.
   In seeking to reopen deportation proceedings, it is incumbent upon
the alien to make a prima facie showing of eligibility for the relief sought.
Matter of Rodriguez, 

 (BIA 1979). The respondent has
not sustained his burden. Upon careful consideration of the arguments
advanced by the respondent since the hearing, we are satisfied that
section 245(c)(2) operates to bar adjustment in his case. As no purpose
would be served by reopening, the respondent's appeal from the denial
of his motion to reopen will be dismissed.
  The record reflects that the respondent, a 36-year-old single male, a
native and citizen of Guyana, entered the United States at New York in
May 1976 upon presentation of a nonimmigrant visitor visa. He came to
the United States for the purpose of attending a rally sponsored by the
Unification Church at Yankee Stadium. In July 1976, the respondent
departed New York for Puerto Rico to "work . . . as a missionary" for
the Unification Church (Tr. p. 9),a pursuit in which he is apparently still
engaged.
  According to the respondent, his duties as a missionary consist of
holding and attending seminars, witnessing, visiting houses and teaching people on the street the word of God, distributing literature, helping

  ' Prior to the deportation hearing, the District Director had denied the respondent's
application for adjustment of status on a ground other than that cited by the immigration
judge, i.e., section 212(a)(15) of the Act, 8 U.S.C. 1182(a)(15). The respondent contends
that the Service did,not raise the unauthorized employment bar of section 245(c)(2) as a
possible basis for denial when he renewed his application at the hearing and that he was
therefore denied an opportunity to show that the bar did not apply in ilia case. Despite this
objection, the immigration judge ruled that the respondent had had adequate opportunity
to demonstrate eligibility for the relief sought.

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 people financially under Church auspices, and visiting churches. Those
 duties also include selling toys, jewelry and trinkets as a means of
 raising funds for the Church. The respondent, estimates that he spends
 from one-third to one-half of his time fund-raising.
    The respondent testified that the proceeds of his fund-raising efforts
 are turned over to the Director of the Church in Puerto Rico with whom
 he shares a rented house. In return, the respondent receives full support from the Church which includes housing, food, clothing, medical
 expenses, transportation, entertainment, toiletries, and other personal
 expenses. In addition, the respondent is given approximately $25 in
 cash each month for "walking around" money, enough to ensure that he
 has -$10 in pocket money at all times.
   The unauthorized employment bar of section 245(c)(2), added by the
 1976 Amendments to the Act, 2 renders ineligible for adjustment of status aliens (other than immediate relatives) who, after the effective date
 of the bar, continued in or accepted authorized employment prior to
 filing an adjustment application_ The respondent continued his activities
 on behalf of the Unification Church, which he does not contend were
 authorized by the Service, after the Jaimary 1, 1977, effective date of
 the bar. His adjustment application, based upon his status as th•beneficiary of an approved second-preference visa petition Submitted by his
 lawful permanent resident mother, was not filed until May 1977. The
 dispositive question, then, is whether those activities constitute "em 7
                                                                             ployment"wihcplaonfseti245().Thmgration judge answered that question in the affirmative, concluding that
  the respondent was employed as a fund-raiser for the Church.
     The respondent contends that the activities in question may not properly be characterized as employment so as to bar him from the benefits
  of section 245. He describes his position with the Church as an unpaid
  volunteer, not an employee, arguing that he labors for no salary. He
' submits that his service as a missionary is not the type of pursuit Congress contemplated in enacting section 245(c)(2). Finally, the respondent argues that his fund-raising efforts and his teaching, proselytizing,
  and other religious duties are integral, indivisible parts of his missionary work and that it is not within the province of the Immigration and
 Naturalization Service or the immigration judge to determine what constitutes missionary work for any. particular chureh.
    The respondent's contention that he is an unpaid volunteer in the .
 service of the Church is not persuasive. He clearly receives compensation in return for his efforts on behalf of the Church. By his own account,
 he is provided the wherewithal to cover both necessary and nonessential

   2 1976 Amendments to the Immigration and Nationality Act, 

 Stet.
 2703 (effective January 1, 1977).

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 Interim Decision #2897
  expenses, such as entertainment and recreation. He is, in addition,
  given discretionary funds as needed: The respondent's relationship with
  the Church in effect guarantees him a standard of living similar to that
  of many moderate-income wage earners. The fact that he receives no
  fixed salary or remuneration in an amount proportional to his success as
  a fund raiser is, in our view, immaterial.
         -


     The respondent insists that his work on behalf of the Unification
  Church is not the sort of undertaking Congress intended to discourage
  with the imposition of the unauthorized employment bar inasmuch as his
  activities have no adverse impact on the -United States labor force. As
  the respondent acknowledges, however, the legislative history of sec-
• tion 245(c)(2) provides little guidance as to the specific end or ends
 sought to be served by the bar. Congress' sole statement of purpose,
  contained in the House Judiciary Committee report to the 1976 Amendinents,3 reads as follows:
   . . . [under the proposed legislation,] aliens who are not defined as immediate relatives
   and who accept unauthorized employment prior to filing their adjustment application
   would be ineligible for adjustment of status. The Committee believes that this prevision
   would deter many nonimmigrants from violating the conditions of their admission by
   obtaining unauthorized employment. Similar provisions were included in legislation
   which passed by the House of Representatives during the 92d and 93rd Congresses.
   (Emphasis added.)
    Concern over the impact of a nonimmigrant's unauthorized employment upon the American labor force may well have been a motivating
 factor underlying the enactment of section 245(c)(2). However, Congress did not so indicate, either indirectly in the legislative history of
 the proposal ultimately enacted or directly in the express language of
 the statute. 4 Absent a clear expression of legislative intent, we are
 unwilling to conclude that detriment to American labor was Congress'
 sole or; for that matter, primary concern..
    Manifest in the report language quoted above is-Congress' substantial
 interest     apart from its arguable interest in protecting the domestic
,labor market — in the enforcement of our immigration laws with respect
 to nonimmigrant aliens within our borders. Cf. Matter of Yazdani,
  17 •I&N Dec. 626 (BIA 1981). 5 Correlatively, by penalizing nonimmi-

     H.R. Rep. No. 94-1553, 94th Cong. 2d Sess. (September 15, 1976), reprinted in 1976
 U.S. Code Cong. & Ad. News 6073, 6084.
   4 Congiess could have, but did not, exempt from the bar nonimmigrants engaged in
 employment determined to be of benefit to the United States. Cf. Matter of Raot, 16 l&N
 Dee. 466 (BIA 1978). Our reluctance to read a limitation into the statute not placed there
 by Congress is bolstered by the fact that-an alien within the ambit of section 245(c)(2) is
 deprived of no ultimate right under the immigration Jaws since he remains free to apply to
 a United States-consul abroad for an immigrant visa.
     Pursuant to those immigration laws, a nonimmigrant is forbidden to work in this
 country unless he has been accorded a nonimmigrant classification which authorizes employ-
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grants who work in violation of the terms of their admission, Congress
may well have sought to discourage aliens admitted to the United States
for a temporary purpose from acquiring a source of funds to support a
prolonged unlawful stay in this country.
   In any event, we are not persuaded that the respondent's activities as
a fund-raiser are without adverse impact on the United States labor ,
market. Unlike the purely ministerial duties carried on by the respon                -. -


dent, we consider the raising of funds a secular function which could
successfully be performed by persons or business enterprises outside
the Church. We note, moreover, that the respondent does not merely
solicit donations in the name of the Unification Church but engageS in
the sale of goods, an entrepreneurial undertaking which places the Church
in competition with other sellers of such goods.
   Under the circumstances here presented, were the institution or
organization for which the respondent performs his fund-raising services not a church, we would have no difficulty in finding the' section
245(c)(2) bar applicable. We find no basis in the language or history of
the statute for carving out an exception to the bar in the case of a
church, at least with respect to the secular activities of its adherents.
   We reject the respondent's suggestion that the Government, by isolating his fund raising activities, improperly seeks to dictate to the Unifica-
              -


tion Church the permissible scope of its missionaries' duties. Determining the status or the duties of an individual within a religious organization
is one thing; determining whether that individual qualifies for status or
benefits under our immigration laws is another. Authority over the
latter determination lies not with the Unification Church or any other
ecclesiastical body but with the secular authorities of the United States.
See Matter of Rhee, 

 (BIA 1978).
   In stun, we conclude• that the respondent, through his fundraising
activities, engaged in employment without Service permission in contravention of section 245(c)(2) and consequently is not eligible to adjust his
status in this country to that of a lawful permanent resident. His motion
to reopen the proceedings to permit consideration of his application for
adjustment of status under section 245 was, therefore, properly denied.
The appeal will be dismissed.
   ORDER: The appeal is dismissed.




meat or has'been granted specific work autluirization from the Service; a nonimmigrant
who is permitted to work may engage only in such employment as has been authorized. 8
                                                                ,

C.F.R. 214.1(e); 8 C.F.R.109.1(a).

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