Matter of Barrios

• Decision Date: 22 January 1963
• Docket Number: A-12376413,Interim Decision Number 1264
• Citation: 10 I&N Dec. 172
• Parties: MATTER OF BARRIOS In DEPORTATION Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

10 I&N Dec. 172

MATTER OF BARRIOS

In DEPORTATION Proceedings

Interim Decision Number 1264

A-12376413

Board of Immigration Appeals

Decided by Board January 22, 1963

The favorable exercise of the discretionary authority contained in section 245 of the Immigration and Nationality Act, as amended, is accorded an alien from a nonquota country, previously denied an immigrant visa because he could not furnish an affidavit of support, who entered the United States as a nonimmigrant fully intending to comply with the terms of his admission, and who did not formulate a specific intention to become a permanent resident until after arrival when he saw an opportunity to work and study simultaneously.

CHARGE:

Order: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9)]—Failed to comply—nonimmigrant visitor for pleasure.

The respondent, a native and citizen of Bolivia, male, 22 years of age, unmarried, has been found deportable under section 241(a) (9) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (9)) as a nonimmigrant visitor who failed to comply with the conditions of the status under which he was admitted. An order entered by the Board of Immigration Appeals on October 11, 1962 adjusted the respondent's immigration status under the provisions of section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) and terminated the deportation proceedings. The case is now before this Board on motion of the Immigration and Naturalization Service for reconsideration of our decision and order of October 11, 1962.

The Immigration and Naturalization Service seeks the withdrawal of our order granting the respondent an adjustment of his immigration status on the ground that our action is not a sound exercise of the Attorney General's discretion. The Service maintains that to grant such relief to a nonquota alien who entered as a nonimmigrant with a preconceived plan to obtain permanent residence by adjusting his status after arrival would encourage deliberate evasion of consular functions. The Service also argues that an alien who "presents himself with tainted hands" does not merit the favorable exercise of a provision in the immigration laws (section 245) which "contemplates relief from hardship in cases presenting strong equities justifying a departure from the normal requirements of the law" (p. 5, Service motion).

Basically, the Service motion is premised upon the same conclusions reached by the special inquiry officer when he denied the respondent's application for an adjustment of his status. We rejected the special inquiry officer's conclusions on the theory that the facts of this particular case when considered in the light of the recent amendment of section 245 by the Act of July 14, 1960, permitted an interpretation more favorable to the respondent's application than that permitted by the statute prior to its amendment.

The Service argument would have us read into the amended statute the identical restrictions which were removed by the Congress. The Service adheres to the theory that an alien nonimmigrant who had a desire or purpose to enter the United States for permanent residence at sometime prior to securing a visa and entry as a nonimmigrant, is precluded from taking advantage of a statute specifically designed to enable him to attain his past desire or purpose without departure from the United States if permitted to do so lawfully. The courts have refused to adopt this theory. Brownell v. Carija, 254 F.2d 78, C.A.D.C., 1957; Brownell v. Gutnayer, 212 F.2d 462, C.A.D.C., 1954.

As stated above our decision to grant relief turns upon the facts of this particular case. The Service would have us base our action solely on the preliminary statement taken from the respondent on April 18, 1962 (Ex. 13). We do not agree with the Service that in the respondent's sworn statement ". . . he unequivocally admitted that it was his intention to come here permanently at the time that he applied for and got his nonimmigrant visa" (p. 3 of Service motion).

The key questions and answers in the preliminary statement concerned with the respondent's intention to establish a permanent residence in the United States are as follows:

Q. Did you come to the United States with the intention to remain here permanently?

A. Yes, sir.

* * * * * *

Q. Then did you have as your intention in Switzerland in December 1961, that you would come to the United States as a visitor, then apply here for permanent residence?

A. Yes. (Ex. 13)

The first question makes no reference to the respondent's intention "at the time he applied for and got his nonimmigrant visa." The respondent's affirmative reply to the second question merely establishes that while in Switzerland in 1961 he decided to enter the United States as a visitor and after such an entry he would apply for permanent residence if permitted to do so lawfully. This is precisely the same situation that was before the Courts of Appeal in the Carija and Gutnayer cases (supra).

The Service concedes that on this record the respondent is statutorily eligible for relief under section 245. They take the position that the respondent should not be rewarded for his subterfuge and evasion by granting him an adjustment of his status (p. 4, Service motion). The Service in support of their position cites two cases¹ which they allege "make it quite clear that a preconceived intent to seek permanent residence through adjustment of status after arrival, is a valid basis for nonexercise of discretion under section 245, even though the alien may be entitled to admission as a nonquota immigrant" (p. 5, Service motion).

The cited cases are not dispositive of the issue presented by the instant case. Both cases are concerned with aliens who entered as nonimmigrant crewmen. Relief under section 245 as amended is specifically barred to alien crewmen. Entry as a "bona fide nonimmigrant" was a statutory requirement of section 245 at the time the alien in the Trujillo-Gonzalez case applied for relief under section 245. The District Director denied relief on two grounds (1) statutory ineligibility and (2) the facts did not warrant the exercise of discretion. The court held that the District Director had reasonable grounds to believe that the alien was not a bona fide crewman and therefore statutorily ineligible for relief. The Service in the instant case concedes that the respondent is statutorily eligible.

The alien crewman in the Fassilis case,¹ supra, applied for relief under section 245 prior to its amendment on July 14, 1960. The District Director on June 2, 1960 denied relief on both statutory and discretionary grounds. The Regional Commissioner on August 23, 1960, subsequent to the amendment of section 245, affirmed the action taken by the District Director. The court found no irregularity in the denial of the alien's application on the ground that he was not a bona fide nonimmigrant crewman. The court, however, disposed of the case on the theory that the amendment of section 245 while the administrative proceeding was pending made mandatory the alien's statutory ineligibility for relief...