A

                              MAC      OF A—

                    In DEPORTATION Proceedings

                                 A-11769106

                  Decided by Board September 22, 1960
Presumption of lawful admission-8 CFR 101.1(i) (formerly 4.2(1))—Entry must
  have occurred prior to December 24, 1952—"Phasing-out" program for Philippine workers on Guam.
 (1) Alien's admission to Guam as a skilled worker occurring subsequent to
   npcomher 24. 1952. does not entitle him to benefit of presumption of lawful
   admission for permanent residence under 8 CFR 101.1(i), formerly 8 CFR
   4.2(j).
 (2) Service's agreement to "phasing-out" program to permit gradual withdrawal of alien non-defense contract workers from Guam specifically requires individual applications for extension of stay. Failure to comply with
   this requirement places the worker in a deportable status when his authorized period of stay has expired.
UHABGE :

  Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ]—After admission as nonimmigrant laborer, remained longer.

                           BEFORE 1.11.h BOARD

   DISCUSSION: Respondent is 31 years old, unmarried, male, alien,
a native and national of the Republic of the Philippines. His last
entry into the United States was at Agana, Guam, on October 18,
 1958. The special inquiry officer found respondent deportable on
the ground set forth above, that he was admitted as a temporary
worker, authorized to remain in the United States until May 20,
 1959, only, and was never given an extension. The special inquiry
officer granted respondent voluntary departure in lieu of deportation.
Rosponclent appeals to this Board.
   The record does not show it, but counsel states that respondent
first entered Guam in 1955 and remained until 1958, when he took a
month's vacation in the Philippines. His arrival record shows him
to be a "baker," destined to Tommy's Bakery, class 11-2, indicating
that he was admitted under section 101(a) (15) (H) (ii) of the Immigration and Nationality Act. Respondent is employed by Tommy'a
Bakery as chief baker of the cake and pastries section. His rate of

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pay is not shown. Counsel states that respondent supervises 18 employees, determining items and quantities to be produced, securing
supplies, assigning personnel and work schedules, and decorating
cakes.
  Respondent was not in Guam early enough to gain the benefit of
8 CFIZ 4.2(j), which is claimed by four other cmployees•of the same
organization, whose appeals are now before us. This regulation
created the "presumption of lawful admission" for persons admitted
to Guam prior to December 24, 1952, who were otherwise eligible,
continued to reside in Guam until December 24, 1952, and did not
abandon or lose this status. The significance and scope of this regulation is discussed in our decision Hatter of C—Y               8 371
 (June 10, 1959). Evidently respondent did not enter Guam until
1955, and there is no claim that he acquired permanent residence
status under this regulation.
   Counsel pleads, and the record establishes, that the.re, are no replacements for respondent, or for the other employees involved in
these proceedings, on the Island of Guam. The Administrator of
the Guam Employment Service, Department of Labor and Personnel,
Government of Guam, advised Mr. T—T—, respondent's employer,
on March 2, 1960, that the Guam Employment Service had not been
able to locate local candidates meeting the requirements of the
position. The Service dues not challenge this contention.
   Counsel asserts further that respondent is not "out of status,"
because he came in without a contract and without a passport, that
he complied with the regulations and kept his status unimpaired.
It is contended, further, that in view of the policy of the Immigration Service known as the "phasing-out program" that he was not
deportable at the time these proceedings were commenced.
   The Board is aware of the "phasing out program" which was the
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solution of the Immigration Service to the problem of "withdrawing"
from Guam its alien, non-defense contract workers. Businessmen
on Guam requested a grace period (preferably 7 years) within which
to train Guamanians to replace alien workers who must be returned
to their native lands. In August 1958 the Service announced it
would no longer approve visa petitions in behalf of non-defense
contract laborers, but it would approve applications for extensions
of stay for such aliens then on Guam. In February 1959 the Service
announced the 3-year-withdrawal plan.
   Exhibit 4 is a letter from the Officer-in-Charge, Immigration and
Naturalization Service, at Guam, to respondent's employer, dated
March 9, 1959, informing him that he would be granted a period of
3 years from March 1, 1959, within which to effect removal of his
alien workers on Guam. Mr. T— was instructed to repatriate 3 employees on March 1, 1960, 3 on March 1, 1961, and the remainder on
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 March 1, 1062. The second paragraph of this letter reminded the
 employer that he "must make timely application for extension of
 temporary stay of each worker, .. . prior to the expiration of the
 worker's present authorized stay on Guam. The worker's passport
 must be valid for at least six months beyond the requested period of
 extension, and you should take the necessary steps in advance of
 applying for such extension of stay to extend, or renew, any passport which does not meet these requirements ... Bring the worker's
 Immigration Permit (Form 1-94) and his passport to the immigration office with the properly prepared. Form 1-539." This letter
 made clear the necessity of securing the extensions, in spite of the
 "phase-out" program. News stories in the Guam Daily News, February 19, 1959, also cautioned employers to file extension-of-stay applications in each individual case, and stated that "group applications" would no longer be effective.
    Exhibit 5, letter from respondent's Washington counsel to Guam
 counsel, April 8, 1959, described the program as he understood it
 at that time. Washington counsel states that he discussed with "the
 Central Office" the information received that eight of the key employees of Tommy's Bakery were to be deported April 8 and 14,
 1959, and that this "caused considerable surprise and the statement
 was made that no non-defense employee is to be deported prior to
 March 1, 1960." Washington counsel so informed Guam counsel by
letter and cable. Clearly, a misunderstanding occurred, through the
assumption that the "phasing out" program would apply, even to
                               -


employees who did not have immigration documents in the required
current condition. Indeed, respondent and other alien employees
whose appeals are now here were unable to report to the immigration
office with their "current valid passports and other documents," because of the revocation of their passports by the Philippine Consul
at Agana, Guam, on February 26, 1959. The Immigration Service
denied extensions to these persons, although Mr. T— was granted
extensions for certain other of his alien employees.
   Respondent's passport was revoked by the Philippine Consul as
the result of a controversy between respondent's employer, a group
of his former employees, the Philippine Consul, and the Department
of Labor of the Republic of the Philippines. Beginning about September 1056, a ban was imposed on Mr. T by the Office of Man-
                                           —


power Services, Department of Labor, Republic of the Philippines,
to prevent him recruiting workers from the Philippines. This was
about the time the complaint against Mr. T— was first made. The
ban was provisionally lifted on July 25, 1958. In September 1958,
upon receiving information that a new complaint or complaints had
been filed against Mr. T—, the Office of Manpower Services at
Manila reimposed the ban. It was later discovered that 4 persons
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obtained passports from the Foreign Affairs Office and went to
Guam to work for Mr. T— without passing the Office of Manpower
Services. It is not clear from this record that respondent is one
of the 4 persons who went to Guam in October 1958 under these
circumstances, but it may be assumed, because respondent reentered
Guam on October 18, 1958, following a vacation in the Philippines.
   The claim against Mr. T— by former employees for nonpayment
of overtime, and the efforts of various departments of the Philippine Government to settle these claims, and the revocation of respondent's passport are not matters within the jurisdiction of this
Board. By the revocation of his passport, respondent became ineligible for a further extension of the period for which he was
admitted.
   The record shows that respondent's authorized period of stay expired on May 20, 1959, and that he was informed by the Immigration Service that he must depart on or before May 23, 1959. The
notice that failure to depart might result in withdrawal of the
privilege of voluntary departure and in deportation action was
dated May 21, 1959, and was delivered to respondent on May 27,
1959. Under these circumstances, the grant of voluntary departure
by the special inquiry officer was correct.
  ORDER: It is ordered that the appeal be dismissed and that the
special inquiry officer's order of November 20, 1959, be and is
hereby affirmed.




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