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June 2, 1955

UNITED STATES of America ex rel. Marianne CITROEN, Relator.
Edward J. SHAUGHNESSY, District Director, Immigration and Naturalization Service, New York District, Respondent

The opinion of the court was delivered by: WALSH

By petition of for a writ of habeas corpus, relator seeks release from the custody of the Immigration and Naturalization Service, by which she is detained under an order and warrant of deportation. The petition is denied.

The relator was last admitted to the United States on July 1, 1953 as a nonimmigrant alien under § 101(a)(15)(H)(ii) of the Immigration and Nationality Act, 8 U.S.C.A. § 1101(a)(15)(H)(ii). *fn1" She was then in possession of a valid visa, the expiration date of which was June 30, 1955. At the time of her entry she was admitted by an immigrant inspector for a temporary period ending December 30, 1953. At no time did she apply for an extension of that period.

On January 14, 1954 she filed an application for adjustment of her status from nonimmigrant alien to that of a person admitted for permanent residence under § 245, 8 U.S.C.A. § 1255. *fn2" Her application was denied by the District Director, on the ground that she was ineligible for the relief sought, in that, at the time of making the application, she no longer had lawful status as a nonimmigrant alien. The denial was adhered to on reconsideration, and was affirmed on appeal by the Assistant Commissioner. She subsequently filed another application for the same relief, on which no action has yet been taken.

 The relator urges that she cannot be lawfully deported at the present time for four reasons.

 (1) Since her visa does not expire until June 30, 1955 the action of the immigrant inspector, limiting the time of her stay to six months, was of no effect; and that accordingly on January 14, 1954 she still maintained the lawful status she had acquired on entry and should have been granted permanent resident status.

 (2) The acceptance and retention of her application for permanent resident status and fee, passport and other documents by the Immigration and Naturalization Service constitutes a waiver of the statutory requirement that an applicant must continue to maintain his lawful status in order to be eligible for this relief.

 (3) An alien cannot be deported while action is pending on an application for permanent resident status.

 (4) An alien cannot be deported before receiving a tax clearance from the Treasury Department.

 According to the statute and the regulations, relator's lawful status as a nonimmigrant alien terminated on December 30, 1953. § 214(a), 8 U.S.C.A. § 1184(a) *fn3" and 8 C.F.R. 214.1. *fn4" She thereafter was a deportable alien under § 241(a)(9), 8 U.S.C.A. § 1251(a)(9). *fn5" The fact that her visa did not expire until a later date does not affect that result. See 22 C.F.R. 41.15. *fn6" Therefore at the time of her initial application, January 14, 1954, she was not one of the class (lawfully admitted nonimmigrant aliens, who had continued to maintain that status), in whose favor the Attorney General was empowered to exercise his discretion.

 The only question of importance was whether there was administrative discretion to waive relator's failure to seek permanent residence status until two weeks after the expiration of her lawful status as nonimmigrant alien. It was this conclusion of law which was the basis for the denial of the relief relator sought.

 Relator has cited no authority, and this court can find none, under which the Attorney General could waive relator's noncompliance with the statute on the basis of its insignificance. The legislative history of the section in question shows that it was a liberalization of the old rule which required all nonimmigrant aliens to leave the country and re-enter in order to get legal status as permanent residents, and that Congress intended its benefits only for those who maintain the legal nonimmigrant status acquired on their entry. H.Rep. 1365, 82 Cong., 2 Sess., 2 U.S.Code Congressional and Administrative News, 1952, pp. 1653, 1719. The pattern of the statute in this regard is rigid rather than flexible. Neither it nor its legislative history supplies any basis for implying power to grant relief here. Relator's attempt to remain here without leaving and returning with legal status is a waste of time, money and effort.

 Petition ...

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