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the respondent comes within article 9 of the Contract permitting a worker to be employed after the expiration of his contract for a period of not more than 15 additional days without being recontracted. Thus, the respondent's legal stay in the United States would not have extended beyond January 4, 1963. There is no evidence presented that an extension of time was granted beyond January 4, 1963. The claim that respondent has a right to remain in a legal status because he had filed an application (which was denied) for a change of status, or because he may have a visa application pending, or because the Board ordered reopening of proceedings is patently without foundation.

It is clear then that the period for which respondent was admitted expired on January 4, 1963. Having remained in the United States beyond the period for which he was authorized to stay, respondent is in the United States in violation of 8 CFR 214(k) (Supp. 1963) which provides that his admission was on condition that he would depart upon the expiration of the period for which he was admitted. Respondent's presence after January 4, 1963 is also in violation of the Agricultural Act for he is no longer maintaining the conditions set by the Attorney General, which the Agricultural Act requires him to maintain. Respondent is illegally in the United States.

We find that provisions of the Immigration and Nationality Act may be used for the expulsion of a Mexican worker illegally in the United States. The immigration law provides that an alien in the United States in violation of any law of the United States shall be deported (Immigration and Nationality Act, sec. 241 (a) (2), 8 U.S.C. 1251 (a) (2) (1958)). The procedure for the deportation of an alien in the United States in violation of law is set forth in section 242 of the Immigration and Nationality Act, 8 U.S.C. 1252 (8 CFR 242.8242.21). This procedure is the "sole and exclusive procedure for determining the deportability of an alien." We think it is clear that respondent, a Mexican worker, in remaining in the United States in violation of the Agricultural Act and the regulation implementing it, is illegally in the United States. We think it is clear that his removal is required by section 241 (a) (2) of the Act.

We shall proceed to discussion of issues raised by counsel as to whether respondent was properly notified of the charge against him, and whether a preliminary inquiry should not have been made under the terms of the Agreement between the United States and the Republic of Mexico before the machinery of the Immigration and Nationality Act could be utilized to deport respondent.

Provisions of the Immigration and Nationality Act and regulations concerning the notification of charges require that the alien be given notice of the nature of the charges against him (Immigration and Nationality Act, sec. 242(b), 8 U.S.C. 1252 (b) (1958); 8 CFR 242.1

(1958); 8 CFR 242.16(d) (Supp. 1963)). The lodged charge is based upon section 241 (a) (2) of the Act which in pertinent part provides for the deportation of an alien who "is in the United States in violation of this chapter [Chapter 12 of Title 8-Immigration and Nationality Act] or in violation of any other law of the United States." Notice of the lodged charge informed respondent that he was deportable under section 241 (a) (2) of the Immigration and Nationality Act, "in that, after temporary admission as an agricultural laborer under Title 5 of the Agricultural Act of 1949, as amended, you have remained in the United States for a longer time than permitted" (Ex. R-1). Two factual allegations in addition to those previously set forth in the order to show cause stated that respondent had been "admitted as an agricultural laborer pursuant to Title 5, Agricultural Act of 1949, as amended, and permitted to remain in the United States until January 4, 1963" (the original allegation had not designated the authority under which respondent had been admitted and had shown the authorized stay as ending on December 20, 1962); and that he had "remained in the United States beyond January 4, 1963, without permission" (the original allegation had merely stated that respondent had failed to depart) (Exs. 1, R−1).

At the hearing, counsel asked to be informed whether the Service in using section 241 (a) (2) of the Act was charging a violation of the Immigration and Nationality Act or another law such as the Agreement. The trial attorney stated that the lodged charge and allegations accompanying it, put respondent upon sufficient notice; the trial attorney refused to furnish any further information (pp. 20–22). While it was error for the trial attorney to fail to answer counsel's inquiry by pointing out that it was a violation of the Agricultural Act which was relied upon, we do not believe that counsel was misled or hampered in his defense. His brief reveals his understanding that the respondent was "charged by the Service with a violation of the Agricultural Act of 1949, as amended" (p. 11, brief October 10, 1963); and we note that counsel advanced a defense at the hearing based upon the Agricultural Act (p. 23). We conclude respondent had proper notice of the charge against him.2

'Since appeals by 13 other respondents, represented by the same counsel defended by the same brief, and involving the same issues are pending before us, and since this order is planned to serve as a precedent for the disposition of the other appeals, we shall, to prevent unnecessary discussion of the issue before us, now list information on this point relating to the other appeals.

At the separate hearings on four cases held on July 11, 1963 before Special Inquiry Officer Leone, counsel stated in three cases that he had "anticipated" the lodged charge and was ready to defend it (Becerra-Vasquez-A-13023737, p. 26; Jacobo Villalobos-A-13564268, p .16; Martinez-Torres-A-13565183, p. 16), in the fourth case, counsel raised no issue as to the nature of the charge, but

As a further defense counsel contends that although the Service. charged respondent with being deportable for violation of the Agricultural Act, the special inquiry officer did not find respondent so deportable, but instead found him deportable as a nonimmigrant under the Immigration and Nationality Act. Counsel's conclusion that the special inquiry officer found respondent had been admitted as a nonimmigrant is deduced from the fact that the special inquiry officer stated that respondent had been admitted subject to the immigration laws. The contention is not valid. The special inquiry officer's order reveals that it was a violation of the Agricultural Act and the regulations implementing it which was the basis for deportation (pp. 5–6, special inquiry officer's order of July 17, 1963). We find, therefore, that the respondent was properly found deportable on the lodged charge.3

The defense under the Agricultural Act is based on counsel's belief that a worker cannot be found to be in the United States in violation of the Agricultural Act unless he is first given the hearing provided by article 30 of the Agreement (Ex. R-4, p. 17). In brief, this article provides that no employer or worker shall be found to have violated the Agreement without investigation by the Secretary of Labor of a complaint filed by the employer or worker, and that charges are to be supplied to the alleged violator who has the right to a hearing. The validity of the complaint is to be judged by the Secretary of Labor and the Mexican consul. If they are unable to reach a satisfactory solution, appeal is provided to the Secretary of Labor and a representative of the Mexican Government in Washington, D.C. Counsel believes that stated he was ready to proceed, and he did make his defense under the Agricultural Act (Sanchez-Bonilla-A-13564262, pp. 13-14).

At the joint hearing on four cases held before Special Inquiry Officer Myron on the morning of July 17, 1963, counsel merely asked the trial attorney whether the Service relied upon only the lodged charge and was told that such was the case (p. 36, Moran-Martinez-A-13563192; Ochoa-Molina-A-13560991; OrtizCalderon-A-13563190; Sandoval-Baron-A-13565131).

(The joint hearing of respondent and the two other aliens was held before Special Inquiry Officer Myron, the afternoon of July 17, 1963.)

At the separate hearings on the three cases held on July 23, 1963 before Special Inquiry Officer Mattel, counsel was either informed by the trial attorney that violation of the Agricultural Act was involved (Castro-Lares, A-13573053, p. R-4; Diaz-Velasquez, A-13568598, p. R-7) or indicated his awareness that the Agricultural Act was involved (Gonzalez-Jaime, A-13567806, R-8-9).

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Special Inquiry Officer Leone who, on July 11, 1963, heard the first group of cases and before whom no issue was raised as to what law was involved, relied upon the violation of the immigration regulation based on the Agricultural Act. Special Inquiry Officer Myron disposing of the cases heard the morning of July 17, 1963 specifically found a violation of the Agricultural Act and the regulations implementing it (pp. 4-5). Special Inquiry Officer Mattell, found a violation of the Agricultural Act (p. 6).

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failure to follow this procedure before a deportation hearing is started is a violation of section 405 of the Immigration and Nationality Act. which states that the Immigration and Nationality Act "shall not be construed to repeal, alter, or amend Title V of the Agricultural Act of 1949, as amended". Counsel believes that the holding of a deportation hearing without first finding a violation of the Agricultural Act under the terms of article 30, amounts to a repeal of article 30.

We do not believe that article 30 applies to a deportation matter. It appears clear from a reading of the article that it provides a procedure to determine rights between an employer and employee, that it concerns problems which would arise between the employer and employee, that it involves the Department of Labor and the Mexican consul, but that it does not apply where parties are the Mexican worker and the Immigration and Naturalization Service and the issue is whether there has been an immigration violation. There is nothing inconsistent between article 30 of the Agreement which implements a law having no reference to the deportation of an alien (other than to make him subject to the immigration laws) and the provisions of the Immigration and Nationality Act relating to the deportation of an alien. Therefore, application of the deportation provisions of the Immigration and Nationality Act does not constitute a repeal, alteration or amendment of the Agricultural Act.

The position of the Board concerning section 248 of the Act (8 U.S.C. 1258 (Supp. IV)) has been set forth in our previous order; further discussion can be of no benefit.

ORDER: It is ordered that no change be made in the order of the special inquiry officer.

Interim Decision #1307

MATTER OF CHIEN

In DEPORTATION Proceedings

A-10107638

Decided by Board October 29, 1963

An exchange visitor alien who has been granted a waiver of the foreign-residence requirement provided by section 212(e), Immigration and Nationality Act, as amended, is not precluded by section 244(f) (2) from establishing statutory eligibility for suspension of deporation under section 244 (a) (1).

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251 (a) (2)]—Remained longer-admission as a nonimmigrant student and change of status to exchange visitor.

The case comes forward pursuant to certification by the special inquiry officer of his decision dated August 2, 1963 ordering that the deportation of the respondent be suspended under the provisions of section 244(a)(1) of the Immigration and Nationality Act, as amended. Discussion as to Deportability: The respondent is a native and citizen of China, 32 years old, male, who last entered the United States on September 19, 1954, at which time he was admitted as a nonimmigrant student. His status was changed on May 8, 1959 to that of an exchange visitor and he was subsequently granted until July 16, 1963 to effect his voluntary departure from the United States. On December 28, 1962 the grant of voluntary departure was rescinded and the respondent acknowledged that he has remained in the United States thereafter without authority. Deportability is conceded and is found to be established as charged in the order to show cause.

Discussion as to Eligibility for Suspension of Deportation: The respondent was married on April 7, 1957. His wife had entered the United States on November 3, 1956 as an exchange visitor and is the beneficiary of a waiver of the two-year foreign residence requirement. They have two children, approximately four and two years of age, both native-born citizens of the United States. The respondent's wife is a pediatrician but is presently active only as a housewife. She and the children are dependent entirely upon the

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