Matter of Garcia
| Decision Date | 27 December 1978 |
| Docket Number | Interim Decision Number 2684,A-20066063 |
| Citation | 16 I&N Dec. 653 |
| Parties | MATTER OF GARCIA In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated June 6, 1978, the Board dismissed an appeal from the October 17, 1977, decision of an immigration judge which found three respondents deportable as overstays pursuant to section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), denied their applications for suspension of deportation pursuant to section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1), but granted them the privilege of voluntary departure in lieu of deportation. The male respondent, who will hereafter be referred to as the respondent, now moves to reopen the deportation proceedings to permit him to apply for adjustment of status pursuant to section 245 of the Act, 8 U.S.C. 1255. The motion will be granted.
In order to qualify for adjustment of status under section 245, as amended,1 an alien must apply for adjustment, establish that he is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and that an immigrant visa is immediately available to him at the time his application is filed. We have held that absent a prima facie showing that the statutory requirements for the relief sought have been met, reopening of the proceedings is generally inappropriate. See Matter of Lam, 14 I. & N.Dec. 98 (BIA 1972); Matter of Sipus, 14 I. & N. Dec. 229 (BIA 1972).
The respondent's motion to reopen for consideration of his application for adjustment of status2 is predicated upon a visa petition filed by his United States citizen spouse to accord him immediate relative status under section 201(b) of the Act, 8 U.S.C. 1151(b). The visa petition, which was filed simultaneously with the respondent's adjustment application pursuant to amended regulation 8 C.F.R. 245.2(b)(2), has not yet been approved and the respondent consequently cannot at present establish immediate visa availability, a statutory prerequisite to a grant of section 245 relief.
We have examined our policy with respect to the disposition of motions to reopen for consideration of adjustment applications based upon as yet unadjudicated visa petitions in light of the present regulation permitting simultaneous filing. In order to give what we consider to be appropriate effect to the simultaneous filing provisions of 8 C.F.R. 245.2(a)(2), as amended, we shall hereafter generally reopen the deportation proceedings in such cases unless clear ineligibility is apparent in the record.
The 1976 Amendments to the Act amended section 245 to designate the date the adjustment application is filed, rather than the date it is approved, as the date to be used in determining whether a visa is immediately available. Concomitant with the effective date of the amendment to the statute, the Service amended its regulation 8 C.F.R. 245.2(a)(2) to allow an adjustment application filed simultaneously with a visa petition to be retained for processing provided that the subsequent approval of the petition would make a visa immediately available at the time the adjustment application is filed. The amended regulation provides in pertinent part:
(2) Filing application. Before an application for adjustment of status under section 245 of the Act may be considered properly filed, a visa must be immediately available. If a visa would be immediately available only upon approval of a visa petition, the application will not be considered properly filed unless such petition has first been approved. If a visa petition is submitted simultaneously with the adjustment application, the adjustment application shall be retained for processing only if approval of the petition when reached for adjudication would make a visa immediately available at the time of filing of the adjustment application. If such petition is subsequently approved, the date of filing the adjustment application shall be deemed the date which the accompanying petition was filed. (Emphasis supplied.)
In order for an alien's adjustment application to be accepted for processing under the simultaneous filing provisions of 8 C.F.R. 245.2(a)(2), he must establish, inter alia, that a visa would be immediately avilable to him at the time of filing but for the fact that his visa petition has not yet been approved. By deeming the filing date of the adjustment application to be the date the accompanying petition is filed, the amended regulation insures that the beneficiary of a prima facie approvable visa petition, who is subsequently found to have been fully qualified in fact for adjustment of status at the time of simultaneous filing, will not lose his eligibility by virtue of the fact that visa numbers may no longer be available to him by the time his petition is approved and his adjustment application may accordingly be considered properly filed. Thus, the regulation allows an otherwise qualified applicant to preserve immediate visa availability and, hence, eligiblity for adjustment of status throughout the often protracted period of administrative processing. It is evident that the benefit bestowed by the regulation would be illusory were such alien to become or remain subject to the execution of an order of deportation during the processing period.
It has been suggested that the simultaneous filing provisions of 8 C.F.R. 245.2(a)(2) were designed to apply only where the visa petition and adjustment application are submitted to the District Director prior to the institution of deportation proceedings. We find that neither the language of the regulation itself nor policy considerations support an interpretation which would render the regulation nugatory after...
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