Matter of Blas
| Decision Date | 10 March 1976 |
| Docket Number | Interim Decision Number 2485,A-18487421 |
| Citation | 15 I&N Dec. 626 |
| Parties | MATTER OF BLAS In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
On April 18, 1973, an immigration judge found the respondent deportable as charged, granted him the privilege of voluntary departure, ordered his deportation to the Republic of the Philippines, in the event of his failure to depart when and as required, denied his application for permanent residence status under section 245 of the Immigration and Nationality Act, in the exercise of administrative discretion and certified the case to us for final decision. The immigration judge's decision will be affirmed.
The respondent, a 38-year-old male native and citizen of the Philippines, was admitted to the United States at Honolulu, Hawaii, as a visitor, on or about September 21, 1970. On November 13, 1972, he was granted the privilege of departing voluntarily from the United States on or before November 28, 1972, without the issuance of an order to show cause. He failed to depart within the specified time. His deportability under section 241(a)(2) of the Immigration and Nationality Act has been established by clear, convincing, and unequivocal evidence.
On March 18, 1973, the respondent married a woman who obtained United States citizenship a month later, and who, thereafter, filed a visa petition to accord him immediate relative status. That petition was approved.
At the hearing before the immigration judge, the respondent applied for adjustment of his status to that of a permanent resident, under section 245 of the Immigration and Nationality Act. The immigration judge denied that relief in the exercise of administrative discretion, but granted the respondent's alternative application for the privilege of voluntary departure.
The respondent was adopted by a couple when he was only one and a half years old (Tr., p. 23). His adoptive parents have resided in the United States for many years (Tr., p. 22). They are United States citizens. In his correspondence with them, he discussed with them the matter of a visa petition to be filed by them on his behalf after his entry into the United States (Tr., p. 22). When he filed his nonimmigrant visa application with the American Consul in Manila he disclosed none of the foregoing facts. On the contrary, he stated in his application that neither of his parents was in the United States, and that he planned to stay in the United States for 35 days. For the benefit of the American Consul he described himself as a "supervisor" with Star-Lite Philippines, Inc. (Exhibit 3, Visa Application, Form FS-257a). Actually, he was doing some contract work for that company (Tr. p. 27) after a regular eight-hour working day with the Mitsui Corporation which employed him as a draftsman (Tr., p. 25).
The record further shows that the respondent came to the United States from the Philippines to get away from his family, that is, from his wife and their four minor children (Tr., p. 18). He came here with the intention to divorce his wife (Tr., p. 19), to remarry in the United States (Tr., p. 19), and to stay here. When he applied for his nonimmigrant visa with the American Consul he stated that his purpose was to take a "pleasure trip" (Exhibit 3, Form FS-257a). He did not reveal his true plans.
The respondent's adoptive parents filed a fourth-preference visa petition for him. However, during the times here pertinent, no visa numbers were available for natives of the Philippines who were within the fourth-preference class. Eventually, the respondent's adoptive parents withdrew the visa petition which they had filed on his behalf (Tr., p. 21). They have had no contacts with him for at least a year (Tr., p. 11).
The respondent has managed to carry out his preconceived plans. He went to Nevada for two months (Tr., p. 16), secured a divorce from his wife, who was, and still is, in the Philippines, and married his present wife, who was then a lawful permanent resident of the United States. The immigration judge is convinced that that kind of conduct should preclude the granting of adjustment of status. Not finding any unusual and appealing circumstances present, he denied the application for section 245 relief. We fully agree.
We are quite aware of the difficulties which confront immigration judges in matters of this kind. As in all other matters which involve the exercise of administrative discretion, the immigration judge's decision will depend, and must be based, on the facts of the particular case. In voicing his concern, this immigration judge has added that the respondent's case is one of many in which aliens are proceeding in a similar fashion, abandoning their families and causing tribulations to their dependents. While the facts of record amply support the denial of this respondent's application for section 245 relief, we emphasize that no decision should ever rest, or even give the slightest appearance of resting, upon generalizations derived from evaluations of the actions of members of any group of aliens. Every adjudication must be on a case-by-case basis. Were we to promulgate overly strict guidelines, we would, in effect, infringe upon the immigration judge's discretionary authority. Thus, the guidelines which we adopted have of necessity been general, and not specific.
In Matter of Ortiz-Prieto, 11 I. & N. Dec. 317 (BIA 1965), we emphasized that:
". . . the applicable statute does not contemplate that all aliens who meet the required legal standards will be granted adjustment of status to that of a permanent resident since the grant of an application for adjustment of status is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised by the Attorney General even though statutory prerequisites have been met."
In Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970), we attempted to clarify the language which we had used in Ortiz-Prieto, supra. We stated the following:
It appears that there is a need for further clarification.
Whenever an alien applies for discretionary relief in immigration matters, he bears the burden of showing why administrative discretion should be favorably exercised. Thus, an alien who, at a hearing held before an immigration judge, applies for adjustment of his status to that of a lawful permanent resident, has the burden of establishing that the requested relief should be granted in the exercise of discretion, 8 CFR 242.17(d); Chen v. Foley, 385 F.2d 929 (C.A. 6, 1967), cert. denied 393 U.S. 838; Thomaidis v. INS, 431 F.2d 711 (C.A. 9, 1970), cert. denied 401 U.S. 954; Matter of Ortiz-Prieto, supra.
Where an alien and the alien's spouse have been living apart for many years, the marriage has existed in name only, the alien visits in the United States, enters into a bona fide marriage with an American citizen or lawful permanent resident after a divorce from the foreign spouse, and becomes the beneficiary of an approved visa petition, and there are no adverse factors present, the alien's application for adjustment of status is not likely to present any problems. However, those are not the facts in the case that is now before us. Here the respondent's scheme precludes the favorable exercise of administrative discretion. The provisions of the Immigration and Nationality Act are supposed to favor the reuniting of families. It would be unreasonable to ascribe to Congress an intention to promote the breakup of aliens' marriages abroad. We reject, as erroneous, any interpretation of the Arai standards which would require a grant of adjustment of status in every case in which the alien has succeeded in negotiating a marriage to a United States citizen or to a lawful permanent resident alien. Sp...
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