Interim Decision #1267
Mowrit or romactrox
In DEPORTATION Proceedings
A-12302174
Deckled by Board February 19, 1963
(1) An alien's application for adjustment of status under section 245 of the
Immigration and .Nationality Act, as amended, filed simultaneously with a
petition for third-preference status at a time when the quota was open, but
on 'which final nation by the district director was completed after the quota
had closed, may not be approved nano pro limo by the special inquiry officer
in de nova consideration of application in deportation proceedings since as
of the date of consideration an immigrant visa was not immediately available
to the alien as required by subsection (a) (3) of section 245.
(2) The setting of the terms and conditions for voluntary departure is not
within the jurisdiction of the Board of Immigration Appeals (8 OEM 244.2).
(See also, Matter of Die, Int. Dee. No. 1304.)
CriAltOE:
Order: Act of 1952—Section 241(a) (2) [8 11.S.C. 1251]—Nonimmigrant (temporary visitor for pleasure)—remained longer.
In a decision dated December 10, 1962, the special inquiry officer
denied the respondent's request for adjustment of his status, ante;
granted his application for voluntary departure; and provided for
his deportation on the above-stated charge in the event of his failure
to so depart. The appeal from that decision, which brings the case
before this Board for consideration, will be dismissed.
The record relates to a 21-year-old single male alien, a native and
citizen of Italy. He last entered the United States on or about October 5, 1961. He was then admitted as a temporary visitor for pleasure
for a period which, with extensions, was to run until July 5, 1962. He
has remained in the United States since the expiration of the temporary period of his admission without authority. Accordingly, his
deportability on the above-stated charge . is established.
On April 19, 1962, the respondent submitted an application for
adjustment of his status under section 245 of the Immigration and
Nationality Act, with accompanying documents. At the same time,
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a petition to have him accorded third preference status under the
Italian quota, filed in his behalf by his legally resident alien father,
was also submitted. Both the application and the petition were received by the Service on the following day, April 20, 1962.
On June 20, 1962, the respondent was accorded a hearing and examination in connection with his application for adjustment of status.
On the following day, June 21, 1962, he was notified that his father's
petition in his behalf had been approved. On August 20, 1962, the
District Director denied his application for adjustment of status
under section 245 of the Immigration and Nationality Act, on the
ground that the third preference portion of the Italian quota was
then oversubscribed.
On November 26, 1962, deportation 'proceedings were instituted
against the respondent by the issuance and service upon him of an
order to show cause charging him with deportability on the above-stated ground. In the course of the hearing conducted thereunder,
held on December 10, 1962, the respondent renewed his request for
adjustment of status under section 245 of the Immigration and Nationality Act. It was denied by the special inquiry officer, for the same
reason it was previously denied by the District Director.
The basis of the special inquiry officer's denial, as well as that of
the District Director previously, was a Department of State Visa
Office Bulletin in effect at the time of the decisions showing the third
preference portion of the Italian quota to be oversubscribed for a
period of approximately 10 years. The respondent concedes that this
was the case.
However, he points to Department of State Visa Office Bulletin
#93, dated April 2, 1962, showing that as of the date of its issuance
the third preference portion of the Italian quota was current. He
stresses that this situation continued until Visa Office Bulletin *93
(supra) was cancelled by the issuance of Department of State Visa
Office Bulletin #96, dated June 4, 1962. The latter shows that as of
July 1, 1962, the third preference portion of the Italian quota was
unavailable to applicants or petitioners who had filed for such status
subsequent to December 1,1953?
He argues that, on the basis of the foregoing, his application could
have been granted at any time prior to July 1, 1962, because a visa
was then available to him He contends that his petition and application should have been processed within that period of time, and that
failure in the administrative process in this respect was unduly preju-
Department of State Visa Office Bulletin #101 of January 2, 1963, now sets
this date as March 1, 1955.
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died to him. He requests that we approve his application, mow
pro twit& This, however, we cannot do.
Section 245 (a) (3) of the Immigration and Nationality Act provides that an alien's application for adjustment of status to that of one
lawfully admitted for permanent residence cannot be granted unless
"an immigrant visa is immediately available to him at the time his
application is approved." The foregoing, however, establishes that
we are confronted with precisely such a situation here. Under the
law, therefore, the special inquiry officer had no alternative but to
deny the application. The law is equally binding on this Board. It
makes no provision for retroactive approval of the application.
Respondent's assertion that his visa petition and application for
adjustment of status should have been processed between April 20,
and July 1, 1962, overlooks the normal administrative steps required
in the processing of said petition and application. The dates set forth
'above do not indicate any abnormal delay in. this respect, and the
respondent points to none.
His argument also overlooks the fact that since the provisions of
sections 201(e) and 203(a) of the Immigration and Nationality Act
(8 U.S.C. 1151 and 1158) apply under all quotas, the indication that a
quota or a preference thereunder is current may not be construed to
signify that such numbers are available for use at all times during the
period for which requested or specified as being covered by the Department of State Visa Office Bulletin in question. Moreover, it overlooks
the.fact that while the respondent's petition and application were still
subject to administrative adjudication, he had no established right to
the future status he was seeking to obtain; and that the statute makes
the granting of such application a matter wholly within the discretion
of the Attorney General, acting through his duly designated represen.tatives.° It further overlooks the fact that the law makes the Department of State responsible for the determination that the third preference portion of the Italian quota is or is not oversubscribed. Such
a determination is binding on all the parties here involved, and this
administrative tribunal is not the proper forum for review thereof.
8 CFR 245.2 does not, as claimed by respondent, authorize the special
inquiry officer to review a District Director's denial of adjustment
under the statute. Rather, it specifically precludes appeal from the
District Director's denial and provides for de novo consideration by
the special inquiry officer. 8 CFR 242.17 makes this abundantly clear.
The only other aspect of the case requiring comment is respondent's
alternative request for voluntary departure. The special inquiry officer has, on the record before us, properly found respondent eligible
2 Fassilis v. Esperdv, 301 F. 2d 429.
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for such relief and granted it. There is no merit in respondent's request that we return his case to the special inquiry officer or the District Director with instructions to grant voluntary departure with an
indefinite time for departing, on the basis of the equitable and humanitarian factors in the case previously pointed up. Under the regulations (8 CFR 211.2), the setting of the terms and conditions for voluntary departure is not properly a function of this Board.
ORDER : It is ordered that the appeal be and the same is hereby
dismissed.
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