DAVIS

                                                   Interim Decision #1317




                             MATTER OF DAVIS

                   In DEPORTATION Proceedings

                                 A-13486274
                  Decided by Board January .O, 1984

An alien who entered the United States as a nonimmigrant transit without a visa
  (TRWOV) is ineligible for adjustment of status under section 245. Immigration and Nationality Act, as amended, in view of the provisions of 8 ar.n
 214.2(c) (1).
OrtenoEs :
  Order: Act of 1052 —Section 241(a) (1) [8 IT.S.C. 1251(a) (1) 1 —IfeteludableNo immigrant visa. (Withdrawn)
  Lodged: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) '(2)1—Nonimmigrant—Remained longer.


   The case comes forward on appeal from the order of the special
inquiry officer dated October 17, 1963, denying the respondent's application. for adjustment of status under section 245 of the Immigration and Nationality Act; granting her the privilege of voluntary
departure in lieu of deportation with the automatic order that if the
respondent failed to depart as required she should be deported from
the United States to the Philippines on the lodged charge only.
   The record relates to a native and citizen of the Philippines, female,
married, who last entered the United States at Honolulu, Hawaii, on
August 3, 1963. She was in possession of Philippine Passport No.
27615 which did not contain a nonimmigrant or an immigrant visa
for admission to the United States and the respondent testified that
she never did obtain a nonimmigrant or an immigrant visa for entry
into the United States. She stated that she did obtain a visa for
admission to Mexico and the passport contains such a visa. The
respondent identified Exhibit 3 as relating to her. Exhibit 3 is a
copy of the Form 1-91 issued to her which shows that she was admitted at Honolulu, Hawaii, on August 3, 1963, as TRWOV (transit
without visa) for immediate and continuous transit to Mexico by
August 4, 1963.

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  The respondent testified that she entered the United States as a
tourist with the intention of proceeding to Mexico to get her visa and
then returning to the United States; that she was supposed to change
planes in San Francisco and go to Mexico the next day. However,
when she arrived at San Francisco her fiance informed her that he
did not have enough furlough time from the Marines to go to Mexico
with her and that they then decided to get married in the United States
and try to straighten out her status in this country. She was married
on August 10, 1963, at Waukegan, Illinois, to a native-born United
States citizen who is now serving in the United States Marine Corps
and is stationed in North Carolina. The application for adjustment
of status indicates that her husband has filed a visa petition in her
behalf which is pending.
  At the hearing the trial attorney withdrew the charge contained in
the order to show cause and lodged a "remained.longer" charge under
section 241(a) (2) of the Immigration and Nationality Act together
with two additional allegations of fact. The respondent conceded
the additional allegations that she was admitted to the United States
as a nonimmigrant transit without a visa for immediate and continuous
transit to Mexico and was authorized to remain in the United States
until August 4, 1963, and that she has remained beyond that date. The
record establishes that the respondent is subject to deportation solely
on the lodged charge.
   The respondent has applied for adjustment of status to that of a
permanent resident under section 245 of the Immigration and Nationality Act. She is married to a United States citizen who has filed a
visa petition for nonquota status on her behalf which is now pending.
However, under the provisions of 8 MR, 214.2(c) (1) as amended (

 (March 29, 1963) ) it is specifically stated that the privilege
of transit without a visa may be authorized only under the conditions
that the alien will depart voluntarily from the United States and that
he will not apply for adjustment of status under section 245 of the
Act. Inasmuch as the record establishes that the respondent was admitted to the United States as a transit without a visa on August 3,
1963 (Ex. 8) and inasmuch as the provisions of the regulation referred
to above were then in effect, she is not eligible for adjustment of status
under the provisions of section 245 of the Immigration and Nationality
Act and her application for adjustment of status was therefore properly denied. The brief of counsel which cites the case of Brownell v.
Carija, 

 (D.C. Cir., 1957) has no application because the
amended regulation referred to was not then in effect.
   The respondent has also applied in the alternative for the privilege
of voluntary departure. She is residing with her mother-in-law in

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Milwaukee, Wisconsin. She stated that she does not have funds to
depart from the United States but that she can obtain funds from her
husband or from her mother-hi-law. She has never been arrested
and never been a member of the Communist Party. The grant of
voluntary departure appears appropriate. The appeal will be
dismissed..
  ORDER: It is ordered that the appeal be and the same is hereby
dismissed.




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