RUBIO-VARGAS

                                                    Interim Decision *1466




                         MATTER OF RUBIO–VARGAS

                        In Deportation Proceedings
                                 A-13852779
                      Decided by Board May 4,1965
In the absence of substantial equities, adjuStment of status under section 245,
  Immigration and Nationality Act, as amended, is denied, as a matter of
  discretion, to a native and citizen of Peru, who, in an effort to accelerate his
  immigration following marriage in Peru to a lawful permanent resident of
  the United States, -entered this country as a nonimmigrant visitor with the
  preconceived plan. of Joining his wife here and remaining permanently,
  thereby circumventing the normal immigrant visa-issuing process by the
  United States consul abroad. [Matter of Dias-Viffamil, Int. Dec. No IWO,
  reaffirmed.]
Diazzon:
  Orders Act of 1952—Section 241(a) (2) (S U.S.C. 1251(a) (2)1—Visitor for
                            pleasure, remained longer        .


   In. a decision dated January 11, 1965, the special inquiry officer
granted the respondent's, application for aditistment of status under
section 245 of the ImmigretioThAnd Nationality AoL From that
decision the trial attorney for the Immigration and Naturalization
Service "has'appeeled. to this Board. The appeal will be sustained.
   The respondent is a 25 year old married male alien, a native and
citizen of Peru who entered the United States at Miami, Florida, on
March 31, 1961, at which time he was admitted as a temporary
visitor for pleasure. He was authorized to remain in - the United
States until June 19, 1964, and he has remained beyond that time
without authority. His deportability is not in issue here. The
special inquiry officer on a consideration of the respondent's application for adjustment of status under section. 245 found • him to be
statutorily eligible for the relief. It is his opinion that the respondent merits such relief as a matter of discretion.
   The respondent entered the United States - on March 31, 1964. On
February 28, 1964, the respondent married a permanent resident of
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      the United States and the Marriage was performed in Peru. Within
         fee; days after the marriage his wife returned to the United
      States. In the course of the proceedings it was pointed out t6 the
     respondent the apparent incongruity of his having a sincere intention to enter the United States temporarily as a visitor after his
  ' recent marriage tp a legal resident of the United States who was,
     at the time of his admission as a visitor, a permanent resident of the
         ,


    'United States. The respondent then admitted that upon his entry
     into the United States he had the intention to remain here permanently with the preconceived plan of applying for adjustment of
     status under section 245. The special inquiry officer in his opinion
     states that the record establishes that the respondent used the nonimmigrant route to the United States in order to avoid a waiting
     period necessarily encountered were he to apply to the American
     consulate for an immigrant visa. However, despite this circumstance, the spicial 'inquiry officer has considered the August 21, 1958,
     amendment of section 245 of the Immigration and Nationality Act
 . which eliminated aliens who had not entered the United States in
     good 'faith as nonimmigrants from statutory ineligibility for relief
    under section 245. The special Inquiry officer states that this amend-
                                            ,


    ment is of significance and properly concludes that under the present
    amendment an alien who enters the United States not in good faith
' and not as a bona fide nonimmigrant can be statutorily eligible for
    adjustment of his status. 'With this we 'agree.
        The decision of the special inquiry officer notes that the respondent
    could undoubtedly secure an immigrant visa from an American consulate outside the United. States and that that document would be
    issued within a short time. As to this statement we are not aware
  of the length of waitingtime the respondent would encounter were he
  to apply for a visa to an American consulate outside the United
 -States. Page 3 of the decision of the special inquiry officer states
  that the record establishes that" the respondent took this route in
  order to avoid. the necessary waiting period. This statement seems
  to be at odds with the statement on page 5 that the visa -would be
 issued within a short time.
   The special inquiry officer continues by noting the expenses involved by the respondent were it - necessary for him to secure his
 visa at the American consulate in Peru, and rhetorically asks, "What
 motive would there be to require the respondent to pay that sum to
 proceed to Peru to there obtain an immigrant visa and then with it
 to again travel to the United. States?" Apparently the special inquiry officer believes that his assumption as to the eligibility of the
 respondent for an immigrant visa coupled to the avoidance of a

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 delay encountered in Peru add up to a. conclusion that the respoild ,
                                                         agree.          entshouldbgra eif.Inthswcao
    We agree that the respondent is statutorily eligible for adjustment of status. Hon ever, as a matter of discretion we adhere to our
  position stated in Matter of Diaz Villamil, Int. Dec. No. 1330, in
                                                    -


  which we recognized that the Foreign Service of. the United States
 has placed in various consulates abroad trained and knowledgeable
 personnel for the specific purpose of considering the issuance or
 denial of immigrant visas to alien applicants. This personnel is so
 situated for the convenience of persons • resident in those countries
 who desire permanent residence in the United States. The offices
 of American counsuls abroad are geared for such service, have
 facilities at their disposal for the investigations and clearances of
 visa applicants and these functions are properly established by law
 and regulations as a desirable and necessary concomitant to the.
 proper issuance of immigrant visas. We realize that. administrative
 delays are encountered in many of these offices by visa applicants.
We maintain the proper procedures followed in such posts should
 not be circumvented by aliens abroad who desire to accelerate their
 immigration to this country. Any short-cutting of these functions
should be avoided.
    By our decision here we do not hold that every applicant who
 avoids the visa issuing functions of consuls abroad by coming as
a nonimmigrant will be thereafter denied relief under section 245.
 Conceivably there are instances where substantial equities may intervene and warrant favorable action as a matter of discretion.
Such intervening equities are not present in this case, for here the
respondent was married in Peru to a legal resident of the United
States prior to his arrival in the United States as a visitor. His
actions subsequent to his marriage constitute a calculated risk un
his part which he chose to take in order to avoid administrative delay
at the consulate in Peru. We think under these circumstances that
despite the favorable factors considered by the special inquiry officer,
the application should be denied as a matter of discretion.
   Although the special inquiry officer did not rule on the application
of the respondent for voluntary departure in lieu of deportation,
we have concluded upon a consideration of this file that that privilege
should be granted to the respondent. Accordingly, the following
orders will be entered.
   ORDER: It is ordered that the order of the special inquiry officer
granting the respondent's application for adjustment of status under
section 245 of the Immigration and Nationality Act be withdrawn.
   It is further ordered that the appeal of the trial attorney and
the Service representative be sustained.

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   It is further ordered that the respondent be granted . voluntary
 departure in. lieu of deportation without expense to the government
 and within. such time and under such conditions as the district director shall direct.
          further ordered that if the respondent fails to depart when
 and as required, the privilege of voluntary departure shall be with
         without further. notice . or proceedings and the following
 order. shall thereupon be immediately effective: the respondent shall
 be deported from the United States to Peru on the charge contained
in the order to show cause. . "




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