C

                              NIATTER OF   C—

                   In DEPORTATION Proceedings
                                A-11292572

                   Decided by Board October 7, 1960
Nonimmigrant status—Criminal conviction per se not considered violation of
 nonimmigrant status.
Conviction for dieordcrly conduct does not conctituto violation of nonimmigrant student status where the alien was not incarcerated and continued his
  school attendance without interruption. (Modifies Matter of         6-762.)
CHARGE :
  Order: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9)1—Failed to
           comply with nonimmigrant student status.


                          13Et'OICE THE BOAKIJ

   DISCUSSION: This is an appeal from the special inquiry officer's
order of Jurie 10, 1960, finding respondent deportable on the charge
set forth above. Respondent, a native of Bermuda and subject of
Great Britain, male, unmarried, 21 years of age, last entered the
United States at New York on September 5, 1958, as a nonimmigrant
student. His last extension expired September 4, 190. Respondent.
admits that he was "apprehended" on December 5, 1959, on a charge
of soliciting for lewd and immoral purposes. Exhibits 2 and 3, copies
of records of the Metropolitan Police Department, Washington,
D.C., disclose that respondent was a student at Howard University
at the time of his apprehension; that this was his first arrest ; that
the arrest took place at 1 :00 A.M. in the vicinity of Lafayette Park
in Washington, D.C.; that, having made obscene proposals to a
member of the Metropolitan Police Force, he was arrested and "taken
to the CCB in a patrol wagon."
  An information was filed in the Criminal Division of the Municipal
Court for the District of Columbia on December 7, 1959, alleging
that respondent did unlawfully invite, entice, persuade, address for
the purpose of inviting, enticing and persuading an adult person,
to wit, E—M-74--- (police officer), for lewd and immoral purposes.
The Assistant United States Attorney who handled this case appeared and testified at the immigration hearing, stating that this
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 charge was nolle prossed on February 5, 196U, and that respondent
 forfeited his collateral of $100 on a substituted charge of "disorderly conduct (sex)." The Assistant United States Attorney
 testified that since this was respondent's first offense, and since he
 was in the country temporarily as a student and was going to leave
 the country when he finished his studies, Mr. Q— felt it was a good
 disposition of the matter to permit respondent to plead guilty, in
 effect, to a lesser criminal offense.
   Exhibits 3 and 6, copied from the Metropolitan Police Department
 records, indicate that the substituted charge was "disorderly (pervert)," which differs from counsel's recollection that the substituted
charge was "disorderly (sex)." Mr. Q— stated that in his opinion
"disorderly (sex)" and "disorderly (pervert)" charges would be
the came. The Assistant United States Attorney testified that the
respondent "knew what he was forfeiting to and why"; that it is
unimportant what he actually forfeited to, since he knew what he
was charged with; and that the disposition of the case was to save
the trial, save the court time; and that the nolle pros was contingent on the fact that respondent would forfeit the $100 collateral.
This disposition of the case is indicated by exhibits 5 and 6 (court
and police records).
   The special inquiry officer found that respondent's criminal offense constitutes activity inconsistent with and in violation of
the conditions of his nonimmigrant status. He stated that regardless of the name given the offense, it stems from homosexuality, and
that respondent cannot establish good moral character for the past
five years in order to qualify for a grant of voluntary departure.
   In oral argument before the Board the Service representative
cited our decision, Matter of A—, 6-762, wherein an alien in the
United States as a temporary visitor for pleasure was arrested
fur "disorderly conduct, loading," under a New York statute
defining disorderly conduct as an "offense" rather than as a crime.
In Matter of A—, supra, the alien was sentenced to 30 days in the
workhouse and served that sentence. The Board found that the
conduct which resulted in his conviction under that section "constituted activity inconsistent with his status as a nonimmigrant
visitor for pleasure." The Service representative seeks to have the
decision in Matter of A—, supra, extended to the present case, stating that it is not a significant distinction that A— was confined for
a period of time in a penal institution and that the alien in the
instant matter was nut confined.
  The decision in Matter of A , supra, does not make it sufficiently
                              —


clear, perhaps, that we had in mind the fact that when A— was
serving a 30 day term in the workhouse, he was no longer pursuing
the purpose for which he was admitted. He was admitted as a tern-
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 porary "visitor for pleasure" and the jail sentence interrupted his
 pursuit of pleasure, and, therefore, he was out of status. It seemed
 to us that it was his conviction and confinement which constituted
the activity inconsistent with his status, rather than the criminal
conduct itself.
   Respondent was not incarcerated, and while on probation apparently he continued his attendance at Howard University, Washington, D.C., without interruption, except for vacations. There is
nothing to show that he was expelled from college. So far as this
record shows, he has not accepted employment, or in any other way
"failed to abide by all the terms and conditions of his admission or
extension" as a student, as provided by the regulations. His conduct,
while not to be condoned, resulted in a suspended sentence only,
without any interruption of his attendance at school. We find on
this record that respondent maintained the nonimmigrant status
of a student under which he was admitted, and the appeal will be
sustained. 1
   ORDER: It is ordered that the appeal be and the same is hereby
sustained.
   1 The instant case is similar on its facts to Matter of M—S'—,  A-8953895
(B.I.A., June 24, 1957), and identical with Matter of       A-1349127 (B.I.A.,
December 3, 1959), both unreported, wherein the Board's disposition of the
issue was consistent with the position taken here_ In both those cases the
Board held that the aliens had maintained their student status, since there
was no evidence of intent to abandon it, and they had continued in school
while on probation.




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