Matter of M----

• Decision Date: 05 August 1960
• Docket Number: A-10594987.
• Citation: 9 I&N Dec. 11
• Parties: MATTER OF M----. In DEPORTATION Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

9 I&N Dec. 11

MATTER OF M----.

In DEPORTATION Proceedings.

A-10594987.

Board of Immigration Appeals.

Decided by Board August 5, 1960.

Adjustment of status—Section 245 of 1952 act—Board lacks jurisdiction to review Regional Commissioner's action.

Jurisdiction delegated to the Board of Immigration Appeals under 8 CFR 3.1(b) does not include authority to review Regional Commissioner's denial of application for adjustment of status under section 245 of the 1952 Act.

CHARGE:

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

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order of the special inquiry officer dated March 24, 1960, finding the alien subject to deportation on the charge stated in the order to show cause and directing that he be granted the privilege of voluntary departure in lieu of deportation with the further order that if the alien fails to so depart, the voluntary departure privilege be withdrawn and he be deported.

The facts of the case are fully set forth in the decision of the special inquiry officer. Briefly, the record relates to a native of Poland, a citizen of Argentina, 38 years old, male, who last entered the United States at the port of Miami, Florida, on October 21, 1956, and was admitted as a nonimmigrant visitor for pleasure. An application for adjustment of status to that of a permanent resident pursuant to section 245 of the Immigration and Nationality Act was filed on December 13, 1956, was denied by the District Director, New York District, on August 13, 1959, and the denial was affirmed on appeal to the Regional Commissioner on November 20, 1959. The respondent was notified of the final decision on December 3, 1959, and advised that he was required to depart from the United States on or before January 3, 1960. No further extension of stay was authorized but the respondent has nevertheless continued to reside in this country. Thereafter, deportation proceedings were instituted. The evidence sustains the charge in the order to show cause.

Counsel's contentions were raised below and are raised again in connection with the appeal. Counsel contends that the respondent was denied due process of law in the hearing which resulted in a denial of his petition for adjustment of status under section 245 of the Immigration and Nationality Act and that this Board has authority to review the propriety of and basis for the issuance of the warrant of arrest or order to show cause which followed the denial of the application under section 245 and the failure of the respondent to depart within the time authorized. Counsel asserts that a failure of due process is always reviewable and that this Board has authority to so review under the regulations.

The regulations defining the Board's appellate jurisdiction are contained in 8 CFR 3.1(b). An examination of the seven subparagraphs under 8 CFR 3.1(b) reveals that they do not include appeals from denials of applications for adjustment of status under section 245 of the Immigration and Nationality Act. Indeed, the regulations relating to adjustment of status, 8 CFR, Part 245, specifically state that if the application for adjustment of status is denied, the applicant shall be notified of the reasons thereof and of his right to appeal in accordance with the provisions of Part 103. Section 103.1(e), Title 8, CFR, reserves to the respective Regional Commissioner all appellate jurisdiction specified in the chapter not reserved to the Board of Immigration Appeals or to District Directors outside the United States.

Counsel argues that under...