SWEED

interim Decision #1382




                              ELMER OF SEED

                    In DEPORTATION Proceedings

                                  A-12936546

                     Decided by Board August 19,1964
Approval of a visa petition to accord respondent nonquota status on the basis of
 his marriage to a United States citizen does not preclude denial of respondent's
 application for adjustment of status under section 245, Immigration and
  Nationality Act, as amended, in deportation proceedings, in the exercise of dime-ration, based on doubt as to the bona fides of that marriage.

CICAEGE :
Order: Act of 1982-8ction 241(a) (2) [8 II.S.C. 3251(a) (2))—Entry as nonimmigrant, remained longer.



  An order entered by the special inquiry officer in the abovecaptioned case on February 20, 1963 grants the respondent voluntary
departure in lieu of deportation as an alien who after entry as a.
nonimmigrant visitor remained longer than permitted. The Board
of Immigration Appeals on May 31, 1963 dismissed the respondent's
appeal from the special inquiry officer's order.
  Thereafter, in October of 1963 the respondent moved the Board of
Immigration Appeals to reopen the proceedings to permit further
application for relief under section 245 of the Immigration and
Nationality Act. Supporting the motion was evidence of the fact
that the respondent's first wife had divorced him; that he had married
another United States citizen and that a petition requesting nonquota
status filed by his second wife had been accepted by the Immigration
Service on October 8, 1963. The Board of Immigration Appeals on
November 14, 1963 ordered the hearing reopened for the consideration
of such applications for discretionary relief as may be filed.
  The respondent's further application for adjustment of status under
section 245 was before the special inquiry officer in hearings accorded
him on December 18, 1963 and January 21, 1964. The special inquiry
officer is of the opinion that the respondent's marriages to citizens of
the United States were solely for the purpose of procuring permanent
residence in the United States. He denied relief under section 245
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                                              Interim Decision ,*1,382
as a matter of discretion. The respondent appeals from this decision
of the special inquiry officer, dated January 80,1964.
   The respondent is a native and citizen of Jordan, male, married,
.33 years of age, who last' entered the United States at San Juan,
Puerto Rico on July 19, 1961. He was admitted as a nonimmigrant
visitor and thereafter granted- extensions until February 4, 1963
within which to depart from the United States. The issue of deportability is not before us and the order entered by the special inquiry
officer on February 20, 1963 granting voluntary departure is outstanding.
   The respondent testified that he met his present wife in October
of 1962 when he was still married to his first wife. According to his
                                                -


testimony he determined to marry her but waited until he actually
was divorced by his first wife in March of 1963. When the respondent
was interrogated by his attorney at the first hearing, he testified that
he believed that he and his first wife had.come to an amicable family
agreement. The special inquiry officer is of the opinion that the
respondent must have been aware that divorce proceedings had been
instituted and this factor when coupled with his apparent haste to
remarry during the pendency of his first appeal, certainly renders
his second marriage suspect. The special inquiry officer also states
 that his suspicion is further enhanced by the testimony of both wives
as to the manner in 'which the respondent proposed to them, the length
of time they knew him prior to the proposals, his interrogations as
to their citizenship and marital status, and in the case of the second
wife, her lack of schooling and general worldly knowledge.
   Counsel's brief in support of the appeal urges error in the special
inquiry officer's decision denying respondent's application for status
                                                    ,


as a permanent resident alien. He maintains that inasmuch as the
District Director has approved a visa petition for nonquota, status
filed by the respondent's second wife thereby acknowledging the bona
fides of respondent's second marriage, the special inquiry officer's
-decision denying relief under section 245 on the basis of doubt as to
the bona fides of the said marriage is arbitrary, capricious and not
supported by the facts developed during the reopened hearings.
   A petition to accord nonquota immigration status under section
101 (a) (27) (A) of the Immigration and Nationality Act is filed pursuant to the provisions of section 205 of the same Act. It is a proceeding separate and apart from an application for relief under section
245 of the Immigration and Nationality Act. Pursuant to 8 CFR
205.1 the petitioner, who must be a citizen or an alien lawfully admitted for permanent residence, has the right of appeal to the Board
of Immigration Appeals if the petition is denied by the District Director. The application before us is a proceeding initiated by the alien.
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     768-466--65---45
interim Decision #1382
Under 8 CFR 245.2, an application for a change of status to that of
a permanent resident alien may only be considered by a special inquiry officer in a proceeding under 8 CFR 242 after the alien has been
served with an order to show cause. 8 CFR 242.8 provides the special
inquiry officer with ample authority to exercise his discretion under
section 245 of the Immigration and Nationality Act on. the basis of
a conclusion which is inapposite to a decision reached by the District
Director under sections 101(a) (27) (A) and 205 of the same Act.
  We find no error in the decision of the special inquiry officer. We
will affirm the order granting voluntary departure entered on
February 20, 1963 and will dismiss this appeal.
  ORDER: It is directed that the appeal be and the same is hereby
dismissed. The order entered by the special inquiry officer on
February 20, 1963 granting the alien voluntary departure in lieu of
deportation and further providing for his deportation if the alien
fails to depart when and as required, is hereby affirmed.




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