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him to remain for an additional 15 days. (A statement taken from the respondent before the issuance of the order to show cause reveals that on December 28, 1962, he changed from one agricultural employer to another.) The special inquiry officer ordered respondent deported on the charge in the order to show cause, and the appeal before us was filed.
On appeal, counsel contends that the order to show cause was prematurely issued and is in violation of due process because it was issued before the decision of respondent's appeal to the Regional Commissioner from the District Director's denial of his application for a change of status. (It is also alleged that the Service arrested six respondents ignoring the fact that their appeals to the Regional Commissioner were pending and did not release them until after the order to show cause had been served. The allegation of counsel is not con tested by the Service. Whether or not respondent was in this group is not clear; however, for the purpose of this order we shall assume that he was.)
Counsel's contention concerning the issuance of the order to show cause will be dismissed. Enforcement of the immigration laws often makes necessary, investigation and detention of aliens suspected to be in the United States illegally. The question as to whether there was an abuse of these powers and unwarranted haste in the issuance of the order to show cause is, in the absence of matters of duress and due process, for the attention of the Service rather than the Board. No matter of duress is raised. While a matter of due process is advanced, it seems clear that premature issuance of an order to show cause would not alone amount to a denial of due process. A similar matter was involved in U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 156 (1923). Bilokumsky, an alien who had been ordered deported contended that the deportation proceeding was void ab initio because there had been a lack of probable cause for the issuance of the warrant of arrest. The court rejected the contention saying, “Irregularities on the part of the government official prior to, or in connection with, the arrest, would not necessarily invalidate later proceedings in all respects conformable to law." (263 U.S. at 158) There is no evidence here that the later proceedings failed to conform to law.
We come thus to the issue of respondent's deportability. Deportation is sought under section 241 (a) (9) of the Act (8 U.S.C. 1251 (a) (9)). The section provides for the deportation of an alien who: was admitted as a nonimmigrant and failed to maintain the nonimmigrant status in which he was admitted or to which it was changed pursuant to section 248, or to comply with the conditions of any such status;
Although the section speaks of an alien admitted as a nonimmigrant, neither the statement of law in the order to show cause nor the factual allegation of the order to show cause claims that respondent was admitted as a nonimmigrant: the statement of law is that respondent was admitted "in a temporary status, to wit, an agricultural worker under Title V of the Agricultural Act of 1949, as amended,"; the factual allegation is that respondent was "admitted in the temporary status of an agricultural worker". The special inquiry officer, assuming without discussion (the issue had not been raised before him) that an agricultural worker was a nonimmigrant as described in section 241(a) (9) of the Act, found the charge sustained on the ground that the respondent had clearly remained in the United States longer than the period for which he had been authorized to remain.
We shall reopen proceedings so that the assumption made by the special inquiry officer may be examined since the record raises the question as to whether a temporary worker admitted under the Agricultural Act is a nonimmigrant and whether one who is not a nonimmigrant is deportable under section 241 (a) (9). As counsel (who contends that respondent is a nonimmigrant but not a deportable one) points out, the Service, in the proceeding for the change of status took the position that respondent is not a nonimmigrants, yet in this proceeding the Service proceeds on the theory that respondent is a noniinmigrant. How can the respondent be a nonimmigrant for one purpose and not for another in matters as vital as those involved ? Even more to the point is the fact that section 241 (a) (9) of the Act on which the deportation order is based appears by its terms to relate to aliens whose status can be changed by section 248 of the Act. The respondent has been found by the Service in the change of status proceeding to be an alien whose status cannot be changed by section 248 of the Act. Is section 241 (a) (9) of the Act broad enough to include an alien whose status cannot be changed by section 248 of the Act? These issues require an answers, for if the respondent is not deportable under the section of law on which this proceeding is based, he cannot be ordered deported in this proceeding merely because he appears to be deportable under a section which has not been lodged.” Due process requires that deportation be accomplished only on a ground provided by law, that the alien be notified of the ground so that he can make his defense, that a record be created, and that the record reveal that the Service has established in a fair hearing, by reasonable, substantial, and probative evidence, that the alien is within that ground.
The order of the District Director denying the application for a change of status reads:
An alien who was admitted to the United States as an agricultural worker under the provisions of the Agricultural Act of 1949, as amended, not having acquired a nonimmigrant classification under section 101 (a) (15) of the Immigration and Nationality Act is ineligible for a change of nonimmigrant status under section 248 of the Act (Matter of C-,8 I. & N. Dec. 419).
The Regional Commissioner in affirming the denial stated: “The alien may not be considered as a nonimmigrant and, therefore, is not in a nonimmigrant classification."
* The issues have apparently not been the subject of adjudication by this Board; however, see Matter of G-)-,6 1. & N. Dec. 491.
An issue which may come up again at the reopened hearing is the contention of counsel that the provisions of a standard work contract (Ex. 7) which provide that the services of an agricultural worker may be utilized for a period of not more than 15 days after the expiration of his contract, constitutes an extension of legal stay for the 15 days if the option is exercised. While this contention appears to be arguable on the basis of what little there is in the record, we see no need for attempting to decide or for developing the issue since deportation is sought not for what occurred within the 15-day period following the termination of the contract, but for the failure to depart from the United States even after the 15-day period. (In respondent's particular case, we note that on December 28, 1962, before the expiration of the 15-day extension, he left the employer who had asked him to continue.) However, development of this matter is left to the discretion of the special inquiry officer.
We have reserved until now comment on the issues raised by counsel concerning respondent's attempt to change his status from an agricul. tural worker to a nonimmigrant worker. The proceeding to obtain the change of status and the issues raised in the proceeding—the propriety of the denial of the application for the change of status, the necessity for filing a petition from the employer in connection with the application, the propriety of using state permission to employ agricultural workers made in collateral cases—are not within the jurisdiction of either the special inquiry officer or this Board. The initial decision on the application for a change of status is for the District Director (8 CFR 103.1(f), 103.2–3, 214.4, Form I-129B (note instructions on Form); the appeal is to the Regional Commissioner (8 CFR 103.1 (e)). Clearly, neither the special inquiry officer nor the Board has jurisdiction over the proceeding (8 CFR 3.1; see Matter of Malkiesman, Int. Dec. No. 1090). Since this is so, it follows that comment on the issues raised as to the change of status proceeding would be inappropriate.
Counsel suggests that if the respondent is deportable at all, the proper charge would be under section 241 (a) (2) of the Act (8 U.S.C. 1251(a) (2) which requires the deportation of an alien who is in the United States in riolation of the Immigration and Nationality Act or "any other law of the United States”.
ORDER: It is ordered that the outstanding order of the special inquiry officer be and the same is hereby withdrawn.
It is further ordered that proceedings be reopened for purposes not inconsistent with those stated in our order and for such other purposes as the special inquiry officer may deem appropriate.
It is further ordered that the decision of the special inquiry officer be certified to this Board.
MATTER OF HERNANDEZ
In EXCLUSION Proceedings
Decided by Board June 18, 1963
In determining loss of citizenship under section 349(a) (4) (A), Immigration and
Nationality Act, evidence of employment under the government of a foreign state or a political subdivision thereof should be established by properly authenticated documents which refer to the pertinent portion of the constitu
tion, laws, and regulations of that foreign state. EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20) ]—Immi
grant without visa.
This is an appeal from the order of the special inquiry officer excluding the applicant upon the ground stated above.
The applicant a 40-year-old married male, became a citizen of both the United States and Mexico at birth. Since 1935 he has lived in Mexico; he has been working for the Municipal Water System of Naco, Sonora, Mexico since 1961. The Service charges that this employment resulted in the applicant's loss of United citizenship under the prorisions of section 349(a) (4)(A) of the Act (8 U.S.C. 1481) which provides that a United States national shall lose his United States nationality by: accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, if he has or acquires the nationality of such foreign state *
Loss of United States nationality occurs under this section when the employment is “under the government of a foreign state or a political subdivision" even though performance of the duties of the employment is not inconsistent with retention of United States nationality (Matter of Le Couteur, Int. Dec. No. 1146), and even though the employment is not restricted to nationals of the foreign state. We are thus faced with the sole issue as to whether applicant's employment is "under the government of a foreign state or a political subdivision."
This conclusion is founded on the fact that express language of the prede. cessor section (section 401 (d) of the Nationality Act of 1940, 54 Stat. 1137)