YOUSSEF

                                                Interim Decision #1465




                          Purr= os Yousszr
                      In Deportation Proceedings
                               A-12640176

                    Decided 'by Boiod May 3, 1965
A student from the United Arab Republic who came to the United Stites on a
 scholarship from his government to do graduate work, baring entered Into n
 contract with his government not to marry without permission and to return
  and work for his government, and who, by his subsequent marriage to a
 United States citizen without permission, brOke the contract, noncompliance
 with which committed him to refund an money received wider the scholar.
 ship, is denied adjustment of status under section 245,- Immigration and
 Nationality Act, as amended, as a matter of discretion,.in the absence of a
 showing that his government does not want him back, or that be has made
 adequate financial arrangements to discharge his obligation to his government, or that he has been relieved of this obligation. ' .
Oman:
                                .     -
  Order; Act of 1052: Section 241(a) (2)     U.S.C. 1201(a) (2)1   Remained
                                                                   —

                        longer, student.


   Respondent is It -native and citizen of the United Arab Republic,
25 years of age, who was admitted to the United 'States on or about
December 15, 1960, as a student. He-was authorized to remain in
this country in student status until November 21, 1963. In August
1961 the Service gave him one opportunity to depart voluntarily,
but he failed to depart. Respondent is married to a United States
citizen and applied for adjustment of status under 'section 245 of
the Immigration and Nationality Act. The special inquiry officer
granted his application: The trial attorney for the Immigration
Service appeals from that order. The appeal Will be sustained, and
the application for adjustment will be denied.
  The special inquiry officer reviewed respondent's background in
some detail, and we will not repeat that Jliscussion here. Respondent
came to the United -States on & scholarship from his government for
the purpose of doing graduate -work in this country. He signed an
agreement with the Government Of tlii3 United Arab Republic that
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 he would not marry without its permission, and that after obtaining
 a Ph.D. degree he would work for his government for a maximum
 period of seven 'years. If he did not comply with these conditions,
 he agreed to refund all money received by him in the farm of salary
 and expenses while he was under scholarship. The respondent entered the United States on December 15, 1960. In 1961 he wrote the
 Embassy of the United Arab Republic in Washington, requesting
 permission to marry, and was informed that it was forbidden by law.
 On December 22, 1962, he married a United States citizen. On June
 23, 1964, the Cultural Attache at his Embassy, Washington, wrote
 respondent (Ex. 3) :
   We have received advice from the Missions Department that the Missions
 Executive Committee has made the decision to end your mission since you have
 violtited the law by marrying a foreigner. You are required to refund all salaries received and other expenses paid for you while under scholarship. I
 would like to hear from you as soon as you receive this letter.
   On July 2d, 1964, and again on September 28, 1964, respondent
 wrote the Embassy of the United Arab Republic in Washington,
 requesting an itemized statement of all -money paid to him -while
-under scholarship. He stated that he was financially, unable to repay the money in one lump sum, that he would pay $200• a month
 until the entire amount was refunded, that he would commence
 making the monthly payments upon receiving an itemized statement
 of the money he owed his government. He believes that he owes
 approximately $10,000. His scholarship paid his tuition at the
 University of California, and in addition-gave him $200 a month
for living expenses.
   Respondent testified on November 17, 1964, that he had never
received an answer to his letters of July and September 1964. ITe
 asserted, and counsel stated before the Boaid, that respondent's
 agreement allowed him the option of repaying the money to his
government and not returning personally, and that there is no basis
for a conclusion that respondent wishes to renege on his contractual
agree—ent.                    -


   The special inquiry officer stated that he considered himself bound
in this matter by Matter of Wolfe, Int. Dec. No- 1368 (Acting Reg.
Comm., June 23, 1964). He did not agree with Matter of Wolfe,
stating that if he were to follow his own inclination he would deny
adjustment of status, but it would be "presumptuous" for Tarn to act
contrary to the Service policy set forth in Matter of Wolfe. He
said that "scores" of foreign students in the San Francisco District
alone are permitted each year to adjust their status to that of
permanent residenti. Therefore, ho granted respondent's application.

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   In fact, in Hatter of "Wolfe, the Acting Regional Commissioner
 denied adjustment: Mrs. Wolfe had not made any arrangements
 for repayment of her obligation to the Iranian authorities, although
 her husband stated his willingness to repay the money. Therefore
 her application was rejected, with the suggestion that if she (Mrs.
 Wolfe) makes "satisfactory arrangements" with the Iranian Government to repay her tuition money and to obtain a release from her
 commitment, then favorable action in her behalf could be considered.
 Respondent's We' differs from "FroZfe only in that he made two
 'inquiries of his Embassy, but we do not consider that this constitutes
 ."making mutually satisfactory arrangements". We do not consider
 Matter of Wolfe to be bindir, on us or in these circumstances.
 However, our order here is not inconsistent with the order in Wolfe.
    The Service representative argues that respondent probably would 7
 be an "exchange student," and per se ineligible for adjustment, but
 that we have no exchange program with the United Arab Republic.
 Therefore, he came not as an exchange student but on a regular •
 student visa.
    Counsel contends that if we deny adjustment of status in all of
 these cases, we are writing a new , requirement into section 245,
 classifying alien students with crewmen as ineligible for adjustment
 of status, a restriction which was not placed on section 245 by Congress, and ought, therefore, not to be written into the law by the -
 Board. Counsel argues further that under Mastrapasgua v. Shaughnessy, 180 F.20. 999 (2nd Cir. 1950), to deny suspension uniformly
 to any class of aliens is a failure on the part of the "Board .to
 exercise its discretion and constitutes. an abuse of discretion. •
   We have considered carefully the various aspects of the instant
 ease, set forth above, and we believe that the alien is not in very
  nearly-the same position as was Mrs. Wolfe. He came_to the United'
  States having entered into a contract witli his own government, and
  at this time he has not as yet demonstrated his good faith. The
• burden is on him to show that he has carried out his part of the
 •agreement. He will reverse the special inquiry officer's decisioxi and
  withdraw.his grant of adjustment of status. This . action is Without
  prejudice to respondent's eventually showing that his government
  does not want - him back, or that he has made adequate' financial
  arrangements to.discharge his obligation to his government, • or that
 he has beeri relieved of this obligation. "Upon such a showing, he
  might then qualify for adjustment of status under section 245 of
 the Immigration and Nationality Act.
    ORDER: It is ordered that the appeal of the trial attorney of .the
 Immigration and Naturalization Service be sustained, and that the
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 order 'of ,the special inquiry officer of January. 14, 1965, granting the
- alien adjustment of status under section 245 of the Immigration and
 Nationality Ace be and is hereby withdrawn.
   It it further ,ordered   that the respondent be given voluntary deptirture with an automatic order of deportation.
    It is ficrtiver.ordered that this -order be without prejudice to a
• reopening. arstreconsideration of respondent's application for adjustment.a afiatos.if and when he is able to make a further showing
 as, outtuAinithe order above.




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