Matter of Huey, Interim Decision Number 1903

• Decision Date: 16 September 1968
• Docket Number: Interim Decision Number 1903,A-10825941
• Citation: 13 I&N Dec. 5
• Parties: MATTER OF HUEY In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

13 I&N Dec. 5

MATTER OF HUEY

In Deportation Proceedings

Interim Decision Number 1903

A-10825941

Board of Immigration Appeals.

Decided by Board September 16, 1968

The denial by Congress of suspension of deportation, standing alone, is not a bar to the grant of adjustment of status under section 245 of the Immigration and Nationality Act, as amended. [Matter of Lee, 11 I. & N. Dec. 649, distinguished.]

CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)] —Visitor— remained longer.

ON BEHALF OF RESPONDENT: Joseph S. Hertogs, Esquire, 580 Washington Street, San Francisco, California 94111

ON BEHALF OF SERVICE: Irving A. Appleman, Appellate Trial Attorney

This case is before us on certification from the special inquiry officer for review and final decision. He denied the respondent's application for adjustment of status and ordered only that he be deported to the Republic of China on Formosa. The respondent's application for adjustment of status will be granted.

The respondent is a native and citizen of China, age 33, who has resided in the United States since his arrival at San Francisco, California on or about January 28, 1952. He was admitted as a nonimmigrant visitor for the purpose of proceeding with an action then pending in a United States District Court. His action for a declaratory judgment of United States citizenship was dismissed on April 30, 1962. He has remained in this country without authority since that date.

The special inquiry officer, by order dated October 28, 1963, found that the respondent's deportation, which could only be effected to the Far East, would result in extreme hardship to him. Further finding the respondent eligible for such relief, he granted his application for suspension of deportation. However, the Congress did not approve suspension of deportation in this case and the hearing was reopened. The respondent, a laundry worker since at least 1963, submitted an application for status as a permanent resident under the provisions of section 245. Counsel declined to apply for voluntary departure on behalf of the respondent as an alternative form of relief.

The special inquiry officer, by order dated May 7, 1968, noted that the respondent's father had been naturalized subsequent to his earlier decision and had then filed a petition on behalf of the respondent. The latter was accorded a first preference under the quota for China. The special inquiry officer concluded, however, in view of the decision in Matter of Lee, 11 I. & N. Dec. 649, to deny the respondent's application for permanent resident status as a matter of discretion since Congress had disapproved suspension of deportation in this case. In the absence of an application for voluntary departure, he ordered only that the respondent be deported on the charge contained in the order to show cause. Further finding that a question of policy is involved, the special inquiry officer certified this case to the Board for final decision. Neither party filed a brief in this matter.

At oral argument, counsel pointed out the respondent testified that until the time his father actually appeared and made his confession statement to the Service in 1962, "He had no reason to believe his father had not been born...