Matter of Yazdani, Interim Decision Number 2848
| Decision Date | 10 February 1981 |
| Docket Number | Interim Decision Number 2848,A-24218212 |
| Citation | 17 I&N Dec. 626 |
| Parties | MATTER OF YAZDANI In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated May 2, 1980, an immigration judge found the respondent deportable under section 241(a)(9) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(9), for failure to comply with the conditions of her nonimmigrant student status, but granted her the privilege of voluntary departure in lieu of deportation. The respondent appealed from that decision. The appeal will be dismissed.
The respondent is a 19-year-old native and citizen of Iran who entered the United States as a nonimmigrant student bound for a course of study at the University of Utah. She was admitted for the duration of her student status. Prior to her embarkation for this country, the respondent had been accepted for admission by both the University of Utah and the University of San Francisco and had obtained the requisite Form I-20, Certificate of Eligibility for Nonimmigrant "F-1" Student Status, from each institution. The Form I-20 from the University of San Francisco apparently arrived too late for the respondent to secure a visa to attend that school, however, and her visa was issued for attendance at the University of Utah.
The record reflects that upon her arrival in the United States, the respondent proceeded to the University of Utah, met with the Director of International Student Services there, and obtained that official's permission to transfer to the University of San Francisco together with his signature on her transfer request, Form I-538. The Form I-538 was submitted with the respondent's Form I-94 and her Form I-20 from the University of San Francisco to the Salt Lake City office of the Immigration and Naturalization Service.1 The respondent then enrolled at the University of San Francisco, beginning classes on September 24, 1979.
In December 1979, the respondent reported to the Service's San Francisco office pursuant to 8 C.F.R. 214.5. These deportation proceedings were thereafter instituted by the issuance of an Order to Show Cause charging the respondent with deportability for having violated the conditions of her status by transferring from the school which she was authorized to attend to another school without obtaining advance permission from the Service. At the deportation hearing that ensued on May 2, 1980, the immigration judge found the respondent deportable as charged. The District Director subsequently reviewed the respondent's file to determine whether she should be reinstated to student status and on October 17, 1980, decided against reinstatement.
Section 214(a) of the Act, 8 U.S.C. 1184(a), provides in pertinent part:
The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe...
Under the regulations promulgated by the Attorney General, a nonimmigrant student must establish as a condition for admission that she is destined to and intends to attend the school specified in her visa. 8 C.F.R. 214.2(f)(2). She may not transfer to another school unless she submits a valid Form I-20 completed by that school and the Service grants her permission to transfer. 8 C.F.R. 214.2(f)(4). The regulations further provide that a nonimmigrant applying for admission must agree to abide by all the terms and conditions of her admission. 8 C.F.R. 214.1(a).
On appeal, the respondent through counsel argues (1) that advance permission to transfer is not required by the regulations, and (2) that the respondent is in any event not deportable because she substantially complied with the terms of her status in making application for a transfer. The respondent's arguments must be rejected.
In support of her first contention, the respondent points to language in Service Operations Instruction 214.2(f)(2) which she quotes as follows:
"... if a school transfer has been effected, and the transfer request is submitted to the office having jurisdiction over the school to which he has transferred, the receiving office may adjudicate the request unless there is good reason not to do so." (Emphasis added by the respondent.)
The respondent maintains that the foregoing Operations Instruction casts doubt upon whether it is necessary for a student, in order to remain in status, to make application for permission to transfer prior to transferring schools. We disagree.
As previously noted, a nonimmigrant student is admitted for the purpose of attending a specified school and the regulations expressly provide that a student shall not be eligible to transfer to another school unless the Service grants her permission to transfer. 8 C.F.R. 214.2(f). An alien who transfers to a school other than that which she was authorized to attend without first securing Service permission is in breach of the conditions of her status and is thereby deportable under section 241(a)(9).
There is no question but that the District Director in charge of a Service office may through a retroactive grant of a transfer request reinstate an alien's student status, and Operations Instruction 214.2(f)(2) recognizes that power.2 The power, however, to reinstate student status or grant an extension of nonimmigrant stay lies within the exclusive jurisdiction of the District Director and neither the immigration judge nor the Board may review the propriety of the District Director's determinations. Matter of Teberen, 15 I&N. Dec. 689 (BIA 1976); Matter of Hosseinpour, 15 I&N. Dec. 191 (BIA 1975), aff...
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