VEGA

                                                    Interim Decision #1514




                               MATTER OF VEGA

                         In Deportation Proceedings

                                  A-14226562
                     Deoidedby Board October 18,1965
Absent substantial equities, adjustment of status under section 245, Immigration and Nationality Act, as amended, is denied, as a matter of discretion, to an alien from a nonquota country who prior to, and shortly after,
 his arrival in the United States secured documents needed to support his
 application for adjustment of status, since he sought and gained entry into .
  this country with a preconceived intention to establish permanent residence
  here.    (Matter of Barrios, Int Dee. No. 1264, distinguished.)
Csisaaa:      .
  Order: Act of 1952--SeCtion 241(a) (2) [8 U.B.O. 1201(a) (2)3—Remained
                        longer—visitor.


  An order entered by the special inquiry officer on March 18, 1965
grants the respondent's application for a change of status to 'that of
a permanent resident alien under the provisions of section 245 of the
Immigration and Nationality Act (8 U.S.C. 1255). The trial attorney appeals from this decision_ Re excepts to the conclusion
that relief under section 245 (supra) is warranted in this case.
  The respondent, a native and citizen of El Salvador, unmarried,
41 years of age, last entered the United States through the port of
San Ysidro, California on or about April 25, 1964. He was admitted
as a temporary visitor and thereafter authorized to remain in the
United States in that status until August 10, 1964. He was granted
permission-to depart voluntarily from the United States on or before
December 2, 1964. He has remained in the United States subsequent to December 2, 1964 and he concedes that he is deportable as
charged hr the order to show cause.
   The only issue presented by the case is whether the respondent's application for status as a permanent resident alien under section 245
of the Immigration and Nationality Act merits the favorable exercise of the Attorney General's discretion. The record discloses
that the respondent applied for a nonimmigrant visa in October

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 Interim. Decision #1514
  of 1962 but his application Was denied by the consul in El Salvador.
  The respondent in April of 1961 again applied for a nonimmigrant
  visa. He presented to the consul on this occasion letters which misrepresented his employment status in El Salvador (Ex& 4 & 7). He
  °kilned a police clearance letter prior to his departure from El Salvador and submitted it with his application for an adjustment of
  status. A birth certificate, issued in El Salvador on May 5, 1964
 within 10 days after his entryoras also submitted.
    The respondent denied that he had any intention of remaining
 permanently in the United States at the tiine he secured his nonimmigrant visa_ He testified that. it was about a month after his
 arrival that he decided to apply for an adjustment of status tcrthat
 of a permanent resident alien. The trial attorney maintains that
  the record does not support the respondent's claim that he entered'
 as a bona Me nonimmigrant.
    The special inquiry officer concedes that there is no particular
 merit to the respondent's application. fer relief under ,section 245
 of the Immigration and Nationality Act. He granted relief on the
 basis of a conclusion that our decision in Matter of Barrios (Int.
 Dec. No. 1264, BIA, .Tanuary 22, 1963) put the burden of establish-
. ing that the alien does not qualify for permanent resident status
 upon the Service when the Service makes no attempt to controvert
 the testimony of the alien that he was a bona. Me nonimmigrant at
 the time, of entry.
    We do not agree with the special inquiry officer in this regatta.
 Our decision to grant relief in the Barrios case was limited to the
 facts of that partiCular case. Barrios entered the .United States
 as a nonimmigrant fully cognizant of the fact that he could not
 remain permanently unless p4rmittar1 to do so lawfully. We folind
 no intention on the part of Barrios to circtimvent the normal consular procedures far the issue of a visa to enter the United States for
 permanent residence.
    The facts of the instant ease are similar to those before 'us in
 Matter of Garda-Castillo, Int. Dec. No. 1335, BIA, April 30, 1964. 1
                          Garcia-Castillo, was denied a nonimmigrantThisrepondt,a
 visa upon his first application. On his second application. he
 presented a letter which misrepresented his employment status in
 El Salvador. The fact that this respondent made arrangements to
 secure documents needed to support his application for an adjustment of status prior to and shortly -after his arrival in the United

  3- The Board of Immigration Appeal'• decision denying relief under section
245 affirmed Castillo v. Immigration. and' Naturalization Service, #19, '123,
Q.A. 9, August *3, 1965.

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-States establishes to our satisfaction that he sought and gained
entry into the United States with a preconceived intention to
establish permanent residence here.
   We said- in the Garcia-Castillo ease (supra) that the bona fides
of an applicant for relief under section 245 in securin g         nonimmigrant visa is a persuasive factor in the exercise of the Attorney
General's discretion. We have also said that an affirmative shoWing
that an alien secured a nonimmigrant visa in order to avoid a
consular function doei -not bar every applicant for relief under
section. 245 since conceivably there are instances where substantial
 equities may intervene and warrant favorable action as a matter
 of discretion. Matter of Rubio-Vargas, hit. Dec. No. 1466, BIA,
  May 4, 1965. We find no such equities in the case now before us.
    Discretionary action by its very nature permits wide latitude to
  the authority charged with its exercise. When such authority, is
 bound by hard and fast rules or criteria then its action cannot be
 said to be truly discretionary. This Board has final jurisdiction
 where there is an appeal from a denial of an application for a
 change of status filed pursuant to 8 CFR 242.17 (8 OFR 3.1 (b) (2)).
 Notwithstanding this and recognizing the fact that k.bur precedent
 decisions are binding upon the special inquiry officer, nevertheless
 we believe that the special inquiry officer must base his conelnaions
-where a matter of discretion is concerned on. an evaluation of all
 the facts and circumstances of the particular case before him and not
 on the basis of whether his interpretation of a precedent decision
 circumscribes his individual judgment.
   We will sustain the appeal of the trial attorney; and, since on
this record the respondent appears to be eligible for voluntary departure, we will grant him this privilege. An appropriate order
will be entered.
    ORDER: It is ordered that the outstanding order be withdrawn
and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his
choice, -Within such period of time and under such conditions as the
officer-in-charge of the District deems appropriate.
   /t is further ordered that if the alien does not depart_ from the
United States in accordance with the foregoing, an order of deportation be entered and executed-and he be deported to El Sa.va,dor.




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