Matter of Healy

• Decision Date: 03 July 1979
• Docket Number: A-21672002,A-21672003,Interim Decision Number 2716
• Citation: 17 I&N Dec. 22
• Parties: MATTER OF HEALY AND GOODCHILD In Exclusion Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

17 I&N Dec. 22

MATTER OF HEALY AND GOODCHILD

In Exclusion Proceedings

Interim Decision Number 2716

A-21672002

A-21672003

Board of Immigration Appeals.

Decided by Board July 3, 1979

(1) An alien destined for the United States for the primary purpose of study at a school which has not been approved by the Attorney General for attendance by nonimmigrant students is subject to the provisions of section 101(a)(15)(F) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(F), and is not admissible as a nonimmigrant visitor for pleasure as defined by section 101(a)(15)(B) of the Act.

(2) The B-2, visitor for pleasure, nonimmigrant category is not a "catch-all" classification available to all who wish to come to the United States temporarily for whatever purpose but instead encompasses a specific, defined class of aliens. Section 101(a)(15)(B) of the Act; 22 C.F.R. 41.25.

(3) Where an alien has failed to establish his entitlement to status as a nonimmigrant under any of the classifications set forth in section 101(a)(15) of the Act, he is properly excludable under section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), as an immigrant without the requisite travel or entry documents, not under section 212(a)(26) of the Act, as a nonimmigrant not in possession of the necessary documentation.

(4) Adequate notice of section 212(a)(20) as an applicable ground of exclusion is provided by sections 101(a)(15) and 214(b) of the Act, 8 U.S.C. 1101(a)(15) and 1184(b), which may mandate a finding that an alien is an immigrant whenever his right to a particular nonimmigrant classification is questioned by the Service.

(5) Knowledge of the falsity of a representation satisfies the fraud and willfulness requirements of section 212(a)(19) of the Act. Suite v. INS, 594 F.2d 972 (3 Cir.1979).

(6) Section 291 of the Act, 8 U.S.C. 1361, places the burden upon the alien to demonstrate that he is not inadmissible under any provision of the Act; however, inasmuch as an alien excluded under the first clause of section 212(a)(19) is perpetually barred from admission to the United States, the factual basis of the finding of excludability should be subject to close scrutiny, particularly where the alleged fraud or misrepresentation involves a disputed issue as to the alien's subjective intent.

EXCLUDABLE: Act of 1952—Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)]—Fraudulent visa

Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant—no valid immigrant visa

Sec. 212(a)(26) [8 U.S.C. 1182(a)(26)]—Student—no valid nonimmigrant visa.

ON BEHALF OF APPLICANTS: David Carliner, Esquire, Carliner & Gordon, 1511 K Street, N.W. Washington, D.C. 20005

ON BEHALF OF SERVICE: George Indelicato, Appellate Trial Attorney

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This case is before us on appeal from the April 26, 1978, decision of an immigration judge which found the applicants, Mr. Healy and Mr. Goodchild, excludable under section 212(a)(26) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(26). Mr. Healy was additionally found excludable under section 212(a)(19) of the Act. The appeal will be dismissed.

Mr. Healy, a native and citizen of Ireland and a resident of Australia, applied for a nonimmigrant visa at the United States Consulate General in Melbourne, Australia, for the stated purpose of visiting this country for a 1-month period. On September 7, 1977, he was issued a B-2 nonimmigrant visitor for pleasure visa, valid for multiple applications for admission to the United States within 3 months from the date of issuance. On that same date, Mr. Goodchild, a native and citizen of Great Britain, was issued a B-2 nonimmigrant visitor visa at the United States Embassy in London, England, which was valid for multiple applications for admission to this country within 6 months from the date of issuance.

In the course of inspection upon their respective arrivals in New York, each applicant was found to be in possession of a letter of acceptance for admission to a 9-month course of study at the Claymont School for Continuing Education, an institution which has not been approved for attendance by nonimmigrant students. The applicants were thereupon charged with excludability under section 212(a)(26) as nonimmigrant students not in possession of valid nonimmigrant student visas and under section 212(a)(19) as aliens who procured their visas by willfully misrepresenting material facts.

In the consolidated exclusion proceedings that ensued, the immigration judge found Mr. Goodchild excludable as charged under section 212(a)(26) but held that the charge under section 212(a)(19) could not be sustained in his case. As noted above, Mr. Healy was found excludable under both section 212(a)(26) and section 212(a)(19). The immigration judge's findings as to each charge will be examined in turn.

The facts underlying the section 212(a)(26) charge present an issue common to both applicants, specifically, whether an alien seeking admission to the United States for the primary purpose of attending an educational institution that has not been approved by the Attorney General for attendance by alien students in accordance with section 101(a)(15)(F) of the Act, 8 U.S.C. 1101(a)(15)(F), may be properly admitted as a nonimmigrant visitor for pleasure pursuant to section 101(a)(15)(B) of the Act.

Under section 101(a)(15) of the Act, every alien is considered to be an immigrant unless he is able to establish that he is entitled to nonimmigrant status under one of the specified classes of nonimmigrants designated by Congress in section 101(a)(15)(A) through section 101(a)(15)(L). Section 214(b) of the Act, 8 U.S.C. 1184(b); 22 C.F.R. 41.10. Moreover, the burden is upon the alien to establish that he is entitled to the nonimmigrant classification and type of nonimmigrant visa for which he is an applicant. 22 C.F.R. 41.10; cf. section 291 of the Act, 8 U.S.C. 1361.

The applicants conceded that they are not entitled to status as nonimmigrant students under section 101(a)(15)(F) inasmuch as the Claymont School has not been approved by the Attorney General or his delegate.¹ Each applicant further acknowledged that the principal purpose of his visit was to participate in the basic course to which he was admitted at the Claymont School, that he had paid a deposit of $100 toward the $2,750 tuition for the course prior to seeking admission to the United States, and that he had been in attendance at the school since his parole into this country.

Counsel does not seriously contest the fact that the Claymont School is a school and that the applicants are students within the ordinary usage of those terms and we are satisfied that they are properly classifiable as such.² Counsel argues instead that section 101(a)(15)(F) is solely concerned with alien students destined for approved schools. Since the Claymont School has not been accredited by the Service, he insists that the applicants are not subject to the provisions of section 101(a)(15)(F) of the Act but are admissible as visitors for pleasure. We disagree.

It is clear that absent Service approval of the school to which an alien student is destined, he may not establish eligibility for a nonimmigrant student visa under section 101(a)(15)(F). It does not follow ipso facto, however, that an alien bound for the United States for the primary purpose of pursuing a course of study at an unapproved school is entitled to status as a nonimmigrant visitor for pleasure under section 101(a)(15)(B). That such alien is not entitled to status as a nonimmigrant visitor is evident from the express terms of section 101(a)(15)(B) which includes among those classifiable as nonimmigrants:

an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure; ... (Emphasis added.)

While the statutory term "pleasure"is not defined in the Act, State Department regulation 22 C.F.R. 41.25 provides the following definition:

(c) The term "pleasure", as used in section 101(a)(15)(B) of the Act, refers to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives and rest; medical treatment, or activities of a fraternal, social or service nature.

See also Vol. 9, Foreign Affairs Manual, Part II, 22 C.F.R. 41.25, note 5(a) through (g).

It is thus apparent from the explicit language of section 101(a)(15)(B), as supplemented by the foregoing regulation, that the B-2, or visitor for pleasure, nonimmigrant category was not intended to be a "catch-all" classification available to all who wish to come to the United States temporarily for whatever purpose. Instead, as is the case with the other nonimmigrant classes enumerated by Congress in section 101(a)(15), section 101(a)(15)(B) was designed to encompass a specific, defined class of aliens; by the express terms of the statute, that class does not include aliens coming for the purpose of study. To accept counsel's theory would not only disregard the explicit language of section 101(a)(15)(B) but would undermine the requirements for entitlement to student status under section 101(a)(15)(F) and the detailed regulations which have been promulgated to implement that section.³ See 8 C.F.R. 214.2(f); 8 C.F.R. 214.3; 8 C.F.R. 214.4.

We accordingly hold that an alien bound for the United States for the primary purpose of study is not admissible as a nonimmigrant visitor for pleasure as defined by section 101(a)(15)(B) but must instead establish his entitlement to nonimmigrant student status under section 101(a)(15)(F) and the pertinent regulations. Cf. Matter of Le Floch, 13 I&N Dec. 251 (BIA 1969). We...