Matter of Tanahan, Interim Decision Number 2928
| Decision Date | 13 November 1981 |
| Docket Number | Interim Decision Number 2928,A-23273236 |
| Parties | MATTER OF TANAHAN In Section 245 Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(2) The determination to grant permanent residence status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, lies entirely within the discretion of the Attorney General. An applicant who meets the objective prerequisites for adjustment of status is in no way entitled to that relief. Jarecha v. INS, 417 F.2d 220 (5 Cir. 1969).
ON BEHALF OF APPLICANT: Walter G. Vartanian, Esquire 79 Milk Street Boston, Massachusetts 02109
This matter is before the Regional Commissioner on certification from the Acting District Director in Boston, Massachusetts. The Acting District Director denied the instant application as a matter of discretion upon determining that the applicant failed to meet the "inspected and admitted or paroled" provision of section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a).
Section 245(a) of the Immigration and Nationality Act provides in part that:
The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence ... (Emphasis supplied).
The record relates to a 40-year-old married male alien, a native and citizen of Iran, who last arrived in the United States on June 5, 1979, by way of TWA flight number 753 from London, England. During the inspection process the applicant was referred by the primary immigration inspector at the port of entry to the secondary inspection area because the applicant was suspected of being an intending immigrant not in possession of a valid unexpired immigrant visa pursuant to section 212(a)(20) of the Act.
During the secondary inspection, it was ascertained that the applicant had been residing in England with his family and had resigned from the Oil Service Company of Iran of 1976. In addition, correspondence was discovered that indicated the applicant was actively seeking employment in the United States and had begun negotiations with an Atlanta employment agency. A letter was also found from the British Immigration office indicating that the applicant's request for the return of his passport had the effect of "cancelling the previous application for leave to remain" in the United Kingdom.
Given these facts the immigration inspector refused to admit the applicant to the United States and the applicant chose to execute a formal withdrawal of his application for admission instead of being detained for further inquiry by an immigration judge pursuant to section 235(b) of the Act.
Service Operations Instructions 235.1(o) sets forth the procedures to be followed in cases where an application for admission has been withdrawn and reads in part as follows:
... In any case of an alien whose application for admission has been withdrawn or who has been ordered excluded and deported by a special inquiry officer and who is being turned over to the carrier which brought him to the United States for removal to the country from whence he came, the Form I-94 which that alien presented at the time of his application for admission shall be endorsed with the parole stamp and with the following notation thereon: (Show date to which paroled) To the (show name of carrier) for the purpose of removing (show name of alien) from the United States.
The original of this form shall be given to the alien for presentation to the carrier for endorsement of departure data and return to the Service. At the same time, Form I-259 shall be appropriately endorsed and served on the carrier. The port of entry will retain the duplicate copy of Form I-94 only until the original with departure data is received and forwarded to the Central Office ...
The record contains a copy of Form I-275 (Notice of Withdrawal of Application For Admission to the United States) which states in part:
... I understand that my admissibility is questioned for the above reasons, which I have read or which have been read to me in the English language. Although I understand I may choose to appear before an immigration judge for a hearing in exclusion proceedings, I request that I be permitted to withdraw my application for admission and to return abroad . . .
This statement was signed by the alien on June 5, 1979, and the alien's signature was witnessed by a Supervisory Immigration Inspector.
The record also contains Form I-94 (Arrival-Departure Record) relating to the alien. Form I-94 indicates that the alien was paroled on June 5, 1979, for the purpose of being removed...
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