Matter of Naulu, Interim Decision Number 3005

• Citation: 19 I&N Dec. 351
• Decision Date: 30 January 1986
• Docket Number: A-23122658.,Interim Decision Number 3005
• Parties: MATTER OF NAULU. In Deportation Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

19 I&N Dec. 351

MATTER OF NAULU.

In Deportation Proceedings.

Interim Decision Number 3005

A-23122658.

Board of Immigration Appeals.

Decided by Board January 30, 1986.

A derivative beneficiary "accompanying or following to join" a principal alien under section 203(a)(8) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(8) (1982), cannot precede the principal alien to the United States as an immigrant; however, once the principal alien acquires permanent resident status, his spouse or child is not barred as a matter of law from adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1982), by reason of having preceded the principal alien to this country as a nonimmigrant. Matter of Khan, 14 I&N Dec. 122 (BIA 1972), aff'd sub nom. Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert. denied, 425 U.S. 971 (1976), distinguished.

CHARGE:

Order: Act of 1952 — Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)] — Nonimmigrant — remained longer than permitted

ON BEHALF OF RESPONDENT: Bienvenido D. Junasa Accredited Representative State Immigrant Services Center 2153 N. King Street, Suite 304 Honolulu, Hawaii 96819

ON BEHALF OF SERVICE: Joanna London General Attorney.

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

On September 28, 1983, an immigration judge found the respondent deportable as charged under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), as a nonimmigrant who remained in this country longer than permitted, but granted her the privilege of voluntary departure in lieu of deportation. No appeal was taken from that decision. On March 12, 1984, the respondent filed a motion to reopen the proceedings for consideration of her application for adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1982). An immigration judge denied the motion on July 19, 1984. The respondent has appealed from the denial of her motion to reopen.

The respondent, a 39-year-old married woman, a native and citizen of Tonga, was admitted to the United States as a nonimmigrant visitor on July 15, 1975, and was authorized to remain in this country until January 15, 1976. She has not departed.

The respondent claims eligibility for adjustment of status as a derivative beneficiary through her husband as provided by section 203(a)(8) of the Act, 8 U.S.C. § 1153(a)(8) (1982). Under section 203(a)(8) of the Act, a spouse or child who is not otherwise entitled to an immigrant status or the immediate issuance of an immigrant visa is entitled to the same preference and the same priority date or order of consideration as the principal alien, without the approval of a separate visa petition, if "accompanying or following to join" his spouse or parent.¹ See 8 C.F.R. § 204.1(a)(4) (1985). The respondent's husband, whom she married in February 1973, was lawfully admitted to the United States for permanent residence on February 9, 1984.

In a brief in opposition to the motion to reopen, the Immigration and Naturalization Service contended that the respondent is not eligible to adjust her status as a derivative beneficiary since she neither accompanied her husband when he was admitted to the United States as an immigrant, nor followed to join him, but she instead preceded him to this country. An alien who precedes the principal alien to the United States, the Service argued, cannot obtain derivative preference status through that principal alien. In support of that proposition, the Service cited State Department regulation 22 C.F.R. § 42.1 (1985) and our decision in Matter of Khan, 14 I&N Dec. 122 (BIA 1972), aff'd sub nom. Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert. denied, 425 U.S. 971 (1976). Defining the term "accompanying" and "accompanied by," the foregoing regulation, to which the Board referred in Matter of Khan, supra, concludes with the statement, "An `accompanying' relative may not precede the principal alien to the United States." 22 C.F.R. § 42.1 (1985). The immigration judge denied the motion to reopen for the reasons set forth in the Service's brief.

On November 4, 1985, the Board asked the Service to...