officer concludes, however, that the respondent's departure was meaningfully disruptive of his resident alien status because the respondent "knew he was required to have some form of travel document or identification in order to come back to the United States 2 . . . and he (respondent) knew that he had to be inspected by immigration officers on his return to this country." (pp. 4 & 5, special inquiry officer opinion). The special inquiry officer distinguishes Fleuti on the basis of this reasoning and finds that the respondent did effect an "entry" within the meaning of section 101 (a) (13) of the Act when he last entered the United States at Nogales, Arizona in July of 1959.

Contrary to the special inquiry officer, we are unable to distinguish respondent's case from the Supreme Court holding in Rosenberg v. Fleuti (supra). Knowledge of the fact that a travel document is required for presentation to an inspecting immigration officer upon return to the United States is not the sine qua non of the Supreme Court's reference to travel document requirements as indicative of an "intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence." When the Supreme Court in stating the several factors relevant to a meaningful departure said "whether the alien has to procure any travel documents in order to make this trip" they meant that the procurement of the document is the key to an "intent" to depart "meaningfully" because as the Supreme Court expressed it "the need to obtain such items might well cause the alien to consider more fully the implications involved in his leaving the country." (Emphasis supplied.) Furthermore, under the regulations then prevailing Fleuti was required to present his alien registration receipt card (Form I-151) to effect a reentry when he returned from Mexico in August of 1956 and we presume he had one in his possession for this purpose. As in the case of this respondent Fleuti did not have "to procure any travel documents in order to make his trip" to Mexico (10 L. ed. 2d at p. 1009).

This respondent has had an alien registration card since his initial entry for permanent residence in 1956. He did not have to make a formal application for a travel document authorizing his reentry following a border crossing into Mexico because under 8 CFR 211.1 (supra 2) his alien registration card was sufficient for this purpose. According to his testimony the document he presented upon his return to the United States (alien registration card) said on its face that the

28 CFR 211.1 reads in part as follows: A valid unexpired immigrant visa shall be presented by each arriving immigrant alien except an immigrant who . . .(b) is returning to an unrelinquished lawful permanent residence after a temporary absence abroad (exceptions not pertinent here) not exceeding one year and presents a Form I-151 Alien Registration Receipt Card duly issued to him . . . 38 CFR 211.11 as revised May 15, 1956

holder thereof "was allowed either in Mexico or Canada, possibly three months... (p. 12) It cannot be said under these circumstances. that the respondent's casual and brief excursion beyond our borders was "intended" as a departure disruptive of his resident alien status. Accordingly, the respondent did not make an "entry" within the meaning of section 101 (a) (13) of the Immigration and Nationality Act (supra) when he returned to the United States following a visit in Mexico of four hours' duration in July of 1959. The charge laid under section 241 (a) (4) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(4)) cannot be sustained because the respondent has not been convicted of a crime involving moral turpitude committed within five years of his only "entry" into the United States, namely, his entry for permanent residence on July 7, 1956. An appropriate order will be entered.

Order: The order entered by the special inquiry officer on July 23, 1963 directing the alien's deportation to the Republic of Korea on the charge stated in the order to show cause dated April 25, 1963 is hereby withdrawn.

It is further ordered that the proceeding under the said order to show cause be and the same is hereby terminated.

MATTER OF RIOS-CARRILLO

In DEPORTATION Proceedings

A-13568545

Decided by Board November 6, 1963

An alien agricultural worker who remains in the United States beyond the period for which he was admitted under the provisions of Title V, Agricultural Act of 1949, as amended, is deportable under section 241(a)(2), Immigration and Nationality Act. [Note: The alien in this case is also the subject of Int. Dec. No. 1288.]

CHARGES:

Order: Act of 1952-Section 241 (a) (9) [8 U.S.C. 1251(a)(9)]-Failed to comply with conditions of status of agricultural worker under which admitted to the United States.

Lodged: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Remained longer after temporary admission as an agricultural laborer.

To simplify the discussion and for administrative convenience, this case, one of three the special inquiry officer heard and decided jointly, will be separately considered. (The other cases are Rogelio Avila-Valdez-A-13568544 and Jose Salud Guiterrez-SerratoA-13569146.) The case is before us by certification. The special inquiry officer has found the respondent deportable upon the lodged charge and has granted him voluntary departure. No change will be made in the special inquiry officer's order.

A full statement of the facts has been made previously. Briefly, the Service charges that respondent, a 26-year-old single male alien, a native and citizen of Mexico, was admitted to the United States as an agricultural worker on May 3, 1962 for a period ending June 14, 1962, that recontracts, and a provision of the agreement between the Republic of Mexico and the United States authorized him to remain. until January 4, 1963, and that he has remained beyond January 4, 1963 without permission.

The case was before us previously on appeal from the special inquiry officer's order sustaining the charge in the order to show cause. We reopened proceedings because of the conflict found in the fact that

although the order to show cause arraigned the respondent as a nonimmigrant, the evidence of record revealed that in a collateral proceeding the Service had ruled that respondent was not a nonimmigrant. At the reopened hearing, the Service abandoned the charge in the order to show cause and lodged a new charge which does not allege that the respondent is a nonimmigrant. The new charge alleges that respondent entered as an agricultural laborer. The special inquiry officer sustained the lodged charge finding that the respondent had entered the United States as an agricultural laborer, and that he had remained in the United States longer than permitted by the law and regulation relating to admission of agricultural workers.1

Counsel's first contention is that the respondent is not in an illegal status. His argument is that respondent having been admitted as a nonimmigrant, and having applied to the District Director for a change of status to which as a nonimmigrant he was legally entitled, and his application having been denied on the erroneous ground that he was not a nonimmigrant, must be regarded as legally in the United States. The obvious answer to counsel's contention is that since the denial of the application for a change of status is not subject to further administrative review and it has not been judicially set aside, respondent can derive no legal benefit from the fact that he filed the application.

The question whether respondent is a nonimmigrant is no longer an issue. The Service withdrew the charge which applies to a nonimmigrant and substituted the charge that respondent is deportable as an agricultural laborer who remained longer than permitted. The issues arising out of the lodged charge are whether respondent is an agricultural worker, whether he has remained longer than permitted, and whether an agricultural worker who remains longer than permitted is deportable.

An issue is raised as to whether respondent entered as an agricultural worker. At the original hearing, counsel conceded that respondent had been admitted as an agricultural worker to December 20, 1962; at the reopened hearing counsel denied the additional allegation which accompanied the lodged charge and which stated that respondent had been admitted as an agricultural laborer under the Agricultural Act to January 4, 1963. Is the respondent an agricultural worker? For immigration purposes, an agricultural worker is a Mexican national recruited under the provisions of the Agricultural Act of 1949, as amended ((Agricultural Act), 63 Stat. 1051, as amended, 7 U.S.C. 1461-1468 (1958), as amended, 7 U.S.C. 1461-1468 (Supp. IV); Ex. R-4, pp. III-IV), pursuant to arrangements between the United

The terms "agricultural laborer" and "agricultural worker" are used interchangeably by the Service and the special inquiry officer.

States and the Republic of Mexico to perform services or activities defined by law and who is admitted for such time and under such conditions as the Attorney General may specify (Agricultural Act, secs. 501, 505, 508, 7 U.S.C. 1461, 1464, 1467). The arrangements between the United States and the Republic of Mexico set forth the specific obligations of the employer and employee, and contain provisions to assure the worker wholesome working and living conditions and the retention of the fruits of his labor. These arrangements are embodied in the Migrant Labor Agreement of 1951, as amended (Agreement) (Ex. R-4, pp. 1-22), the Standard Work Contract, as amended (Contract) (Ex. R-4, pp. 23-34), and Joint Operating Instructions (Ex. R-4, pp. 35-51).

We have mentioned that the Agricultural Act provides that admission of the Agricultural worker is to be for such time and under such conditions as the Attorney General may specify. The Attorney General has issued no immigration regulation in regard to time limits, but sets the time within the following framework: workers are not to be made available for employment after December 31, 1963 (Agricultural Act, sec. 510, 7 U.S.C. 1461, note (Supp. IV)), no contract of less than six weeks may be entered into, extensions may be given for a minimum period of 15 days, stay for more than six months is not permitted except that under certain circumstances stay for up to nine months may be arranged (Ex. R-4, Agreement, pp. 10, 16; Contract, pp. 29, 31). The Attorney General has issued an immigration regulation setting the conditions of admission. The regulation states that admission is to be upon agreement of the agricultural worker to abide by three conditions; broadly speaking these conditions are: (1) the alien will engage only in specified employment, (2) the alien will depart upon the expiration of the period for which he is admitted, (3) he will carry the Form I-100C (which is to be issued to him upon admittance) while he is in the United States and will surrender it when he departs (8 CFR 214.2(k) (Supp. 1963); see Immigration and Nationality Act, sec. 103 (a), 8 U.S.C. 1103 (1958)).

The record establishes respondent was admitted as an agricultural worker. Respondent was issued Form I-100C (Ex. 4) which is issued to agricultural workers; the form shows he was admitted "for employment as agricultural worker under Public Law 78 * * [Agricultural Act].

Respondent denies that he has remained longer than the period for which he was admitted. The record does not support this denial. Exhibit 4 reveals that respondent was admitted to June 14, 1962, that this period was extended on five occasions, and that the last extension was to December 20, 1962. The Service apparently concedes that