Interim Decision #1578
MATTER OF FICALORA
In Deportation Proceedings* .
A-14341964
Derided by Board April 21, 1066
(1) The special inquiry officer does not have authority in deportation proceedings to determine an alien's elegibility for sixth preference status in conjunction with an application for adjustment of status pursuant to section
245 of the Immigration and Nationality Act, as amended, nor does the Board
of Immigration Appeals have appellate jurisdiction over such question, the
sole determination, thereof resting with the District Director and the Regional Commissioner (8 CPR 103.1(e) (2) and (f) ).
(2) Where a visa petition, filed just prior to the deportation hearing, to accord
respondent status under the then current sixth preference portion of the
Italian quota was not accepted by the Service but was returned because not
accompanied by a certification from the Secretary of Labor, as required, the
special inquiry officer did not err in failing to defer his decision pending
re--pondent's complianie with the certification requirement.
CEIARGE:
Orde- Act of 1952—Section 211(a) (9) (8 U.B.C. 12817 .Nonimmigrant
(temporary visitor. for pleasure changed to student)
—failed to comply with conditions - of status.
The special inquiry officer, in a decision dated December 10, 1965
denied the respondent's application for adjustment of his status to
that of a permanent resident; granted his alternative request for voluntary departure; and provided for his deportation from the United
States to Italy, on the charge contained in the order to show cause,
• in the "event of his failure to so depart. The respondent's appeal -
from* that decision, which brings the case before this Board for consideration, will be dismissed.
This record relates to a 28-year-old male alien, married,' who is a.
native and citizen of Italy. He last entered the United States on or
about September 20, 1964. He was then admitted as a; nonimmigrant
Be has a wife and child who are „residents of Italy and are apparently
natives abd citizens of that country.
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Interim Decision . 15"1"4
temporary visitor for pleasure. His status was subsequently changed
to that of a nonimmigrant student. He was thereafter authorized to
remain in the United States in the latter status until September 1,
1966.
At the hearing - before the special inquiry officer, the respondent
contended that he was still attending school. It was, hoviever, established that the school which he was then attending and had recently enrolled in was not the school which had been approVed by the
Immigration and Naturalization Service as the institution of learning he was to attend as a student. Also, the respondent had obtained no permission to change from one school to another. He had
attended the school that had been approved for him only one day
because he did not like the school.
The respondent has conceded the correctness of the facts hereinbefore recited. They establish his deportability on the charge contained in the order to show cause. The respondent's deportability
has. in fact, now been conceded. This aspect of the case requires no
fu rt her discussion.
The special inquiry officer has granted the respondent's alternative request for voluntary departure. Suffice it to say, in this connection, that the record before us supports said official's action in
this respect.
The only remaining issue is whether the special inquiry officer has
properly denied the respondent's basic request for adjustment of his
status to that of a permanent resident. Our answer is in the affirmative, for the reasons hereinafter set forth. In reaching this decision,
we hare considered and rejected the respondent's contention that the
special inquiry officer erred in failing to:
assume jurisdiction over the question or tne respondent's eligibility for
sixth preference status; or
(2) defer his decision pending action by the District Director in connection
therewith.
The respondent is allegedly presently employed as a tile setter,
brick layer and stonemason. Just prior to the hearing before the
special inquiry officer, the respondent submitted to the Immigration
and Nationalization Service a petition filed by his employer to have
him accorded sixth preference status under the Italian quota, on the
basis of such employment. Despite the fact that said portion of the
Italian quota appeared to be current, the Service did not accept the
petition, but instead returned it to the respondent. The reason was
that a labor clearance certificate was not submitted With the visa petition. In that posture of the case, then, the .special inquiry_ officer
ruled the respondent ineligible for adjustment of his str. us to that of
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Interim- D,ecisi on #1578
ft. permanent resident, solely on the ground that he did not have a visa
readily available - to him.
8 CFR 204.1(d). specifies that a petition (Form 1-140) to have an
alien classified as a preference immigrant under section 203(a) (6) of ,
the Immigration and Nationality Act 18 U.S.C. 1153) must be ac-
-
companied by a certification of the Secretary of Labor before it may
be accepted by the Service and. considered properly filed; and that
no appeal shall lie from a decision denying the petition for lack of
the certification by the Secretary of Labor. 8 CFR 245.1(d) provides.
that an applipioit for- preference status such as this respondent is
not eligible for the benefits of section,. 245 of the Immigration and
Nationality Act (8 :U.S.C: 1255) unless he is the beneficiary of a valid unexpired visa petition filed in accordance with a CFR 204 and
approved' to accord him such status. 8 CFR 103.1(e) (2) and (f)
places the determination of -whether or not an alien possesses the
qualifiCations for sixth preference statm`solely within the jurisdiction
of the appropriate District Director and Regional Commissioner. 8
CPR 242.8 does not vest in the special inquiry officer authority over
such a question: And CFR 3.1(b) (5) specifically excepts appellate
jurisdiction of such a question from this Board: -
The foregoing regulations have the force and effect of law (Di
Mimi v. (1M, 96 F.2d 92). ' They are binding on all the parties here
concerned. Clearly• in the light thereof and the specific provision of
the regulations, the special inquiry officer properly ruled this respondent ineligible for adjustment of his status to that of a permanent resident. By the same token, respondent's argument that the
-
special inquiry officer erred in failing to pass upon the question of
the respondent's eligibility for sixth preference status is completely
devoid of validity. The same is true' of his assertion that this Board
should do so now.'
We likewise find without merit the claim that the 'Special inquiry
officer should have deferred his decision until the respondent had the
opportunity to comply with the foregoing provisions of the regulations, or that this Board should now enter an order to - that effect.
Despite the passage of four months since the entry of the special
inquiry officer's order, there is no showing here of what, if any,
efforts the respondent has, made to comply with the applicable provisions of the pertinent regulations hereinbefore set forth. If he has
made appropriate efforts in this connection, then they would be properly a matter for the consideration of the apprOpriate District Director in setting the time for the respondent's voluntary departure
or, upon his failure to so.depart, in fixing the time for his deportation. In the latter contingency, as we have previously pointed out
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Interim Decision *1578
(Matter of I—, A-13212,870 10 I. & N. Dec. 372) then would be the
appropriate time for respondent to raise the question of the power of
this Board•to see that justice is done. In any event, resptindent has
available to him the remedy of a motion for reconsideration should
future events in connection with his visa petition render such action
appropriate.
tiAs we have hereinbefore pointed out, the law and the existing
regulations are binding on all parties here concerned. Obviously,
therefore, respondent's complaints about the confusion resulting from
recent changes in the law and poisible delay in obtaining the necessary "clearance order" to be issued by the Secretary of Labor, as required lay the implementing regulations, lie elsewhere than with this
Board. Accordingly, and in view of the foregoing, the special inquiry officer's order will be affirmed.
ORDER: It is, ordered that the appeal_ be and the same is hereby
dismissed,
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