大家可能注意到：我很少把人引到移民法上，除非找不到相应REGULATION 或移民局的ＭＥＭＯ．我这个人最佷去解释法律或判例．原因之一是法律或判例的用词难懂，含糊，包含有大量的CROSS REFERENCE.稍有不慎，南辕北辙，面目全非． (其它原因以后有时间再讲).
下面，我试着用中英文对照讲一个非常重要的案子（MATTER OF HOSSEINPOUR ）．既是回答兔子，也解答移民司法界对４８５后非移民身份的认识．由于水平有限，难免错误很多． 希望英文高手们如: worthit, fas2000, lovewind及专业人士如兔子，radiology，howdy 等指正．
同时，我自己申请置顶， 从而让更多的人看到．
写这样的帖子太费时．由于打字太慢，能不用中文时我尽量不用．今后，如有时间我也许会再写一个帖子继续这个话题．．
United States Department of Justice
Board of Immigration Appeals
MATTER OF HOSSEINPOUR
March 5, 1975
本案的启示.
Where a nonimmigrant respondent indicates his desire to remain in this country permanently, by filing for adjustment of status under section 245 of the Immigration and Nationality Act, this action in itself, does not constitute a failure to maintain status under section 241(a)(9) of the Act. However, where the period of respondent's authorized stay expired, and respondent neither applied for nor received an extension of stay, he was deportable under section 241(a)(2) of the Act, as charged in the order to show cause issued after respondent's period of authorized stay had expired. [Matter of Gallares, Interim Decision #2177 (BIA 1972) modified]
（通过申请AOS, 一个非移民明确的表达了他/她想在美国永远居留的意愿.这个行为本身, 并不能构成不能维护他/她的非移民身份的理由. 但是,如果授权居留的时间已过, 并且他/她没有申请延期或者他/她没有得他/她要的延期,那么他/她就应该被遣返.）
ＢＩＡ 判决
The alien respondent is a native and a citizen of Iran who entered the United States in May 1970 as a nonimmigrant student. He obtained authorization to remain in the United States until May 25, 1973. In February 1973, the respondent filed an application for adjustment of status under section 245 of the Immigration and Nationality Act. On June 21, 1973, the district director denied that application and informed the respondent that he would be permitted to depart from the United States voluntarily on or before July 21, 1973 without the institution of deportation proceedings. The respondent has not departed.
(这部分比较清楚,不重要，省)
The immigration judge concluded that the respondent was deportable under section 241(a)(9) of the Act for failure to comply with the conditions of his nonimmigrant status because he ted an application for adjustment of status. That conclusion was based on language in Matter of Gallares, 14 I. & N. Dec. 250 (BIA 1972), which indicates that a nonimmigrant who seeks adjustment of status under section 245 of the Act thereby ceases to maintain status as a lawful nonimmigrant. We believe that our language in Gallares concerning the effect of an application for adjustment of status upon the maintenance of valid nonimmigrant status was overly broad.
(初审移民法官认定被告应该被遣返, 理由是申请了485后他的非移民身份就失效了. 这个决定是基于Matter of Gallares 的语言. 我们现在觉得,在那个案子中我们的语言显然是过头了).
As originally enacted, section 245(a) of the 1952 Act contained an express provision that: "Any alien who shall file an application for adjustment of his status under this section shall thereby terminate his nonimmigrant status." Act of June 27, 1952, ch. 477, § 245, 66 Stat. 217. The 1958 amendments to section 245 eliminated this provision. Act of August 21, 1958, Pub.L. No. 85-700, § 1, 72 Stat. 699. Since the legislative history of the 1958 amendments indicates that Congress was well aware of the provision automatically terminating nonimmigrant status, we must assume that the deletion of that provision was intentional. S.Rept. No. 2133, 85th Cong., 2d Sess., 1958 U.S.Code Cong. & Admin.News 3698, 3701. See also 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 7.7(b) (1975).
( 1952 的移民法 SECTION 245中有这样的语言： 申请ＡＯＳ自然终止他的非移民身份＂， １９５８年的修改版去掉了这一条．５８年移民法的修改史表明国会知道自然终止非移民身份这个条款．因此，我们只能认为国会是有意去掉这一条款的)
Moreover, courts have held that a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status. Brownell v. Carija, 254 F.2d 78, 80 (D.C.Cir.1957); Bong Youn Choy v. Barber, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of H– R–, 7 I. & N. Dec. 651 (R.C.1958).
（另外联邦法庭也多次指出：以合法的方式表达愿意在美永久居留的意愿并不必然和他／她的合法的非移民身份不一致）
To the extent that our language in Matter of Gallares, supra, indicates that an application for adjustment of status automatically terminates lawful nonimmigrant status, that case is modified. We now hold that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status．
（因此，我们决定修改 Matter of Gallares 的语言． 我们现在认为申请了ＡＯＳ 并不一定与维持非移民身份不一致）
Evidence introduced at the hearing indicates that the respondent has been enrolled in school full time since his arrival in 1970 (Exhs. 6a, 6b, 6c, 7). The respondent's testimony indicated that he intended to remain a student even though he had applied for permanent resident status, and that he was willing to return home when his studies were completed if ordered to do so (Tr. pp. 46-7). The respondent also stated that he had not engaged in unauthorized employment, and that he was supporting himself and paying child support with funds from his family (Tr. p. 60). The Service apparently based the out of status charge solely on the fact that the respondent applied for adjustment of status. We conclude that the Service has failed to establish by clear, convincing, and unequivocal evidence that the respondent is deportable under section 241(a)(9) of the Act for failure to comply with the conditions of his nonimmigrant status.
（初审的证据表明，被告１９７０注册全时学生． 被告指出，即使在申请了ＡＯＳ后他仍有意愿维持他的学生身份．并且如果有命令让他离开，他愿意在学业完成后回他的家．被告指出他没有非法打过工．他的家庭资助他和孩子在美的生活费用支出． 移民局仅仅因为他申请了ＡＯＳ就认为失去了学生的身份．我们认为移民局认定他不能维持学生身份从而递解他的决定缺乏清楚，令人信服和毫无疑问的证据）．
Nevertheless, the record establishes that the respondent's authorized stay in the United States expired on May 25, 1973 (Exh. 3). The respondent received no extension of his authorized stay beyond that date (Exh. 3; Tr. p. 48). Consequently, the respondent's deportability under section 241(a)(2) of the Act as a nonimmigrant who remained in the United States after the expiration of his authorized stay has been established by clear, convincing, and unequivocal evidence.
（尽管如此，记录表明，被告的合法居留期只到７３年５月２３日．他的合法居留期并没有延长．因而，被告在这之后可以被递解就有了清楚，令人信服和毫无疑问的证据）
Counsel contends that the respondent is not deportable as an overstay because by charging him with being out of status the Service in effect precluded him from obtaining an extension of his stay as a nonimmigrant student. The answer to this contention is threefold: (1) there is no evidence in the record that the respondent ever applied for an extension of his stay as a nonimmigrant student, (2) the order to show cause charging the respondent with being out of status was not issued until after the expiration of the respondent's authorized stay, and (3) the decision whether or not to extend a nonimmigrant's authorized stay is within the sole discretion of the district director and is not reviewable by the immigration judge or by us. Matter of Halabi, 15 I. & N. Dec. (BIA 1974).
（被告的律师认为被告不应该因超期居留被递解，因为是移民局认为他失去身份，从而不给他延期．对此，我们的意见如下：１）没有证据表明被告申请过延期 ２）递解令是在被告身份过期之后才发的． ３）移民法庭和本上诉委员会无权决定被告的非移民身份是否可以延期．）
Finally, counsel contends that the immigration judge should have reinstated the respondent to student status. However, the immigration judge had no jurisdiction to reinstate the respondent's student status. Matter of Gallares, supra; see Matter of Halabi, supra; Matter of Sourbis, 11 I. & N. Dec. 335 (BIA 1965).
（被告的律师认为移民法庭应该恢复被告的学生身份．然而，移民法庭并没有这个权利）．
The respondent is deportable as a nonimmigrant who remained beyond the authorized length of his stay. The appeal will be dismissed.
（最后，我们认为被告应该被递解，因为他超过了被允许的居留期）
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily within 64 days from the date of this order or any extension beyond that time as may be granted by the district director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order.