Matter of Vilos
| Decision Date | 24 January 1967 |
| Docket Number | Interim Decision Number 1692,A-13461070. |
| Citation | 12 I&N Dec. 61 |
| Parties | MATTER OF VILOS. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal from the decision of the special inquiry officer, finding respondent statutorily ineligible for adjustment under section 245, and granting voluntary departure in the exercise of discretion.
Respondent is a 31-year-old married male alien, a native and citizen of Greece, who entered the United States as a nonimmigrant visitor for pleasure at New York City on October 3, 1963. Deportation proceedings were held on November 15, 1963 and respondent was represented by counsel. He admitted the factual allegations in the order to show cause, conceded deportability, and applied for voluntary departure which was granted in a summary decision.
On the same day the hearing was held, respondent's brother, a naturalized citizen of the United States, filed a petition for preference quota status on behalf of respondent. The petition was approved on January 3, 1964, at which time respondent's preference under the Greek quota was unavailable. On June 30, 1966, respondent submitted a motion to reopen the proceedings to permit him to apply for adjustment since the fifth preference category of the Greek quota was current. The Service did not oppose the motion and the special inquiry officer, by order dated July 15, 1966, reopened the proceedings for the requested purpose.
A hearing was held on August 3, 1966, at which time respondent presented and filed his application. At the end of the hearing, the special inquiry officer advised respondent that his file would be forwarded to the Travel Control Section of the Service for the purpose of processing the adjustment application and that if, after the application was processed, there was no derogatory information, the special inquiry officer would make his decision and the hearing would then be considered closed. He advised respondent that if such information were received, a further hearing would be held to afford respondent an opportunity to refute it.
The next hearing was held on November 15, 1966. At that time, the Government introduced an affidavit by Peter K. Vellos, the brother of respondent, dated September 8, 1966, in which the affiant stated that he had previously withdrawn the petition in May, 1966, had had it revalidated on June 24, 1966, and that he now wished to withdraw the petition again. He gave several reasons for his action in the affidavit. Also introduced in evidence was a letter from the District Director, dated concurrently with the affidavit, addressed to the petitioner and advising him that upon his withdrawal of the petition, the approval thereof was automatically revoked as of the original approval date. The file does not show that a quota number was allocated for respondent's use by the State Department at any time before the revocation (Tr. p. 18).
Counsel argued that the withdrawal of the petition did not work a revocation because it had occurred too late, since it had not been prior to the commencement of respondent's journey to the United States. He contended that it was untimely also because the respondent, when a quota number was available, had applied for adjustment, submitted all of the documentation, paid the fee, had his physical examination, had his case processed and, it is urged, completed except for the mailing out of the I-151 as evidence of the grant of permanent residence, and that the adjustment procedure was therefore a "consummated transaction" (Tr. p. 16) before the revocation. The Government's position was simply that with the revocation, there was no longer an immigrant visa immediately available to respondent and he, therefore, was ineligible for adjustment. The hearing was closed without...
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