446 F2d 881 Lee v. Immigration and Naturalization Service

446 F.2d 881

James LEE, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 25954.

United States Court of Appeals, Ninth Circuit.

Aug. 11, 1971.

Joseph S. Hertogs (argued), San Francisco, Cal., for petitioner.

Stephen M. Suffin (argued), I.N.S., James L. Browning, U.S. Atty., San Francisco, Cal., John N. Mitchell, U.S. Atty. Gen., Washington, D.C., for respondent.

Before BROWNING, CARTER, and TRASK, Circuit Judges. PER CURIAM:

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1

James Lee petitions for review of an order of the Board of Immigration Appeals affirming an order of the special inquiry officer which denied him an adjustment of status under 8 U.S.C. 1255. Lee contends the denial was an abuse off discretion.

2

The officer and the Board denied Lee's application as a matter of discretion because they found he had not demonstrated his bona fide nonimmigrant status at the time of entering the United States on a nonimmigrant visa. This is a proper factor for the Board's consideration, Castillo v. Immigration and Naturalization Service, 350 F.2d 1, 3-4 (9th Cir. 1965), and there was evidence to support the Board's finding.

3

Petitioner argues that the decision of the Board may lead an American consul abroad to reject any subsequent application by petitioner for documentation on the ground that he obtained his nonimmigrant visa through fraud. 8 U.S.C. 1182(a) (19). At oral argument the Board's counsel agreed that the seriousness of the consequences which may flow from the Board's exercise of discretion is a factor in determining whether that discretion has been abused.

4

The Board stated in its decision, however, that 'the order for petitioner's deportation is not based upon any charge of fraud or misrepresentation'; and the Board's brief in this court states that the decisions of the special inquiry officer and the Board 'contain no charges against Lee of fraud or misrepresentation upon which any denial of a visa application could be based.' We have acted upon these assurances in concluding that, although the record is not strong, it is sufficient to sustain the Board's action.

5

The petition to review is denied and the order of the Board is affirmed.