BENNETT

                                                         Interim Decision #2955




                           MATTER OF BENNETT

                          In Deportation Proceedings

                                    A.-12515060

                     Decided by Board February 8, 1984

(1) An alien who is admitted to the United States as a nonimmigrant visitor, who
  without permission of the Immigration and Naturalization Service engages in
  purely religious activities on behalf of a church, and who is compensated for those
  activities, is deportable for failure to maintain status even if he now qualifies as a
  special immigrant minister and intends to work for the same church which has
  been employing him.
(2) Such employment also bars the alien from adjusting his status pursuant to section 245(cX2) of the Immigration and Nationality Act, 

(cX2) (1982).
CHARGE.
 Order: Act of 1952—Sec. 241(8)(9) [

(aX9)1—Nonimmigrant—failed to
                      comply with conditions of status
ON BEHALF OF RESPONDENT:                            ON BEHALF OF SERVICE:
 Stephen B. Horton, Esquire                          Kenneth W. De Conti,
 60 Washington Street                                General Attorney
 Hartford, Connecticut 06106

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members



  In a decision dated June 24, 1982, an immigration judge found
the respondent deportable as charged, denied his application for
adjustment of status, and granted him the privilege of voluntary
departure in lieu of deportation. The respondent appealed. The
appeal will be dismissed.
  The respondent is a 58-year-old native and citizen of Belize. He
was last admitted to the United States in December of 1981 as a
nonimmigrant visitor for pleasure authorized to remain in this
country for not more than 6 months. On March 29, 1982, an Order
to. Show Cause, Notice of Hearing. and Warrant for Arrest of Alien
(Form I-221S), was issued against him, alleging that he had been
employed as a minister without permission. He was charged with
deportability as a nonimmigrant who failed to comply with the con-
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Interim Decision #2955

ditions of his nonimmigrant status pursuant to section 241(a)(9) of
the Immigration and Nationality Act, 

(a)(9) (1982).
   At a deportation hearing held on June 24, 1982, the respondent,
through counsel, initially conceded deportability but subsequently
retracted the admission, arguing that his employment was not unauthorized and thus did not violate his nonimmigrant status. He
further argued that even if he was deportable, his employment was
not unauthorized so as to bring him within the employment bar of
section 245(c)(2) of the Act, 

(c)(2) (1982), thus prohibiting his adjustment of status. The immigration judge, however,
found that the respondent's employment was unauthorized for purposes both of deportability and adjustment of status. The immigration judge further found that the respondent was ineligible for adjustment because he failed to establish that he was not inadmissible to the United States because of a 1970 deportation (see section
212(aX17) of the Act, 

(a)(17) (1982)), and because of a
possible criminal conviction in Canada for fraud (see section
212(a)(9) of the Act).
   On appeal, the respondent argues 1 that the rendering of purely
religious services to a church does not violate his nonimmigrant
visitor status, nor doss it render him ineligible for adjustment of
status u.nder section 245(c)(2). He further argues that section
212(aX17) of the Act only requires that 5 years pass from the time
of deportation to the time the Attorney General's permission to
return is not required and does not require that an alien remain
outside the United States for all that time. Finally, he contends
that where the fraud charge against him in Canada was conditionally discharged following probation, he is not inadmissible under
section 212(aX9) of the Act.
   In its memorandum on appeal, counsel for the Immigration and
Naturalization Service cites this Board's decision in Matter of Hall,

 (BIA 1982), as support for the immigration judge's
holding. In Matter of Hall, we held that an alien who engaged in
fund-raising activities on behalf of his church and who received
room, board, and pocket money in return was employed within the
contemplation of section 245(c)(2).
  Matter of Hall, supra, involved an alien who was seeking adjustment of status as a second-preference immigrant. The respondent
in the present case, on the other hand, seeks adjustment as a spe-

  1   The respondent's zuguLneuts on appeal arc in fact not arguments but rather are
framed as legal questions. They are contained in the Notice of Appeal (Form I-
290A), on -which counsel indicated that a brief would be forthcoming. However, no
brief has ever been submitted.

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                                                         Interim Decision #2955

cial immigrant minister, and the employment in question here is
identical to that in which he will be engaged if he gains immigrant
status_ Moreover, Hall's activities on behalf of the Unification
Church were not purely religious, whereas the respondent's activities in this case are. Hence, Matter of Hall is distinguishable on its
facts from the present case. 2 Nevertheless, we find the rationale of
Hall persuasive here. Like the alien in Hall, the respondent in this
case engages in activities on behalf of a church and in turn is compensated by the church for those activities. 2 Clearly, this respondent is employed by the church, and permission to engage in this
employment was never received from the Immigration and Naturalization Service. The fact that the respondent's employment was
of a purely religious nature does not mean that he did not need
Service permission to engage in such employment. Nor does the
fact that the respondent now qualifies as a special immigrant minister, and will be employed by the same church which employed
him prior to his adjustment application, Tender his employment authorized. 4
  As we find that the respondent's employment with his church
was unauthorized under the immigration laws, he is deportable
under section 241(a)(0) for failure to comply with the conditions of
his nonimmigrant status. See Ghorbani v. INS, 

 (9th
Cir. 1982). Likewise, his employment was unauthorized within the
meaning of section 245(c)(2), rendering him ineligible for adjustment of status. See Aiyadurai v. INS, 

 (8th Cir. 1982);
Oki v. INS, 

 (9th Cir. 1979); Matter of Hall, supra;
Matter of Raol, 

 (BIA. 19'78).

  2   There is one published decision which does directly address the issue now before
us. In Matter of Dukpa, 

 (D.D. 1931), a district director ruled that
section   245(cX2) does apply to an alien who, prior to applying for adjustment, performs duties and receives remuneration identical to the alien's anticipated duties
and remuneration as a special immigrant minicter. The decision cites no authority
for the holding, however, and the decision itself does not constitute a precedent for
this Board. See 

(e) (1984) regarding the precedential value of district
directors' decisions.
   3 The alien in Hall received only room, board, and approximately $25 per month
"walking around" money. The respondent here receives a salary of $830 every 2
weeks, in addition to living quarters.
   4 Compare Matter of Lett, 

 (BIA 1980), where we held that management of his investment by a qualified investor who is exempt from the labor certification requirements of section 212(aX14) of the Act, 

(aX14) (1976),
does not constitute employment within the meaning of the Act and does not bar adjustment under section 245(cX2). The investor regulations constitute a special exception to the immigration laws' general rules regarding employment. The alien in Lett
was managing his own investment, while the respondent here is in the employ of a
church, filling a position which could also have been filled by an American worker.

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Interim Decision *2955

   Our holding regarding the section 245(c) bar is lent support by
the Immigration and Nationality Act Amendments of 1981, 

 Stat. 1611. There, Congress carved out an exception
to the section 245(c)(2) bar for special immigrants who are qualifying foreign medical graduates. No such specific exception was made
for special immigrant ministers. See section 245(c)(2) as amended by
the 1981 amendments. We must therefore assume that Congress intended the employment bar to apply to them. See generally Andrus
v. Glover Construction Company, 

 (1980); United
States v. Jones, 

 (10th Cir. 1977). We note that
since special immigrant ministers must have been carrying on
their vocation as ministers for the 2 years immediately preceding
their applications for admission as special immigrants, they will
not be eligible for adjustment unless they have received Service
permission to engage in such work.
   As we find that the respondent is ineligible for adjustment of
status under section 245(c)(2) of the Act, we need not decide whether he is also ineligible on the ground that he is inadmissible under
sections 212(a)(9) and/or 212(a)(17). His appeal will accordingly be
dismissed.
   ORDER: The appeal is dismissed.
   FURTHER ORDER: Pursuant to the immigration judge's
order and in accordance with our decision in Matter of Chouliaris,

 (BIA 1977), the respondent is permitted to depart
from the United States voluntarily within 30 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 so to depart, the respondent shall be deported as provided in the immigration judge's
order.




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