TONGA

                                                     Interim. Decision #1588




                              MatItER OF TONCIA

                        In Deportation Proceedings
                                  A-14674907

                     Decided by Board May 26, 1966
Since applicant's preconceived intention to. remain permanently in the United
  States was conditioned on future possibility, and in view of the negative bias
  of his U.S. citizen brother who appeared with, and supplied answers for, him,
  it has not been established he is ineligible for adjustment of status under
  section 245, Immigration and Nationality 'Act, as amended, as a matter of
  discretion, particularly since substantial eanities exist! a native -horn citizen
  child of tender years, the presence here of his wife and alien child, employment at a salary sufficient to support his family, and a naturalized citizen
  brother in this country.
CHARGE:
                                                           •
  Order: Act of 1952—Section 241(a) (2) [8        1251]—Nonimmigrant
                      (temporary visitor) Remained longer.


   The special inquiry officer, in a decision dated November 26, 1965
denied the respondent's application for adjustment,of status to that
of a permanent resident; granted his alternative request for voluntary departure; and provided for his deportation from the United'.
States to Tonga, 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 is directed to the denial of his application
for adjustment of status to that of a permanent resident, must and
will be dismissed.
  The • record relates to a 27-year-old married male alien, a native
and citizen of Tonga, who 'last entered the United States on or about
October 12, 1964. - He was then. admitted as a temporary visitor
for a period until April 12, 1965: On July 26, 1965, his applica- •
      for adjustment of status to that of a permanent resident was tion
administratively denied. He wasfilien granted until August 22, 1965.
to. depart voluntarily from the tnited States. On Aug,ust 9, 1965.
the respondent having indicated that he did not desire to depart
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Interim Decision #1588
but, rather, to renew his application for adjustment of status in
deportation proCeedings, the privilege of ,voluntary departure was
revoked. These proceedingt followed.
  The foregoing establishes the respondent's deportability on the
charge contained in the order to show . cause. This was conceded
in the course of the hearing before the special inquiry officer, and it
is unchallenged. here. This aspect of the case, accordingly, needs
no further 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, Further comment on the point is unnecessary.
   Basically, in denying the respondent's application for adjustment of status to that of a permanent resident, the 'special inquiry
officer relied on a prior precedent decision of this Board (Matter of
G-C. In t. Dec. No. 1335) r:wherein we held that an alien who sought
and gained entry into the United States with a preconceived intention of establishing permanent residence, should have his appli 7
                                                            matter of cationfrsupematidn s-a
discretion. In so doing, said officer pointed out that the respondent
testified that when he applied for his- visitor's visa he sent a letter
to the United. States Consul at Fiji, to whom he had applied for an
immigrant visa in 1961; in which he informed the Consul that he
wished to come to this country as a visitor and he would have to return to Tonga because he was employed and Rad his wife and child
there. The special inquiry officer stressed that as soon as the respondent received the nonimmigrant visa, he sold his business; and
that when he came to the United States, it was his intention to
remain' permanently, if he could. The special inquiry officer emphasized the fact that the respondent obtained ernploynient in November
of 1964, but but in his application for adjustment.of his status to
that of a permanent resident submitted to the Service he did not
show that he was -employed; and that when_ questioned by an immigrant inspector on March 15, 1965, in connection with that appliestion, he stated that he had not been employed. The special inquiry
officer pointed out that on December 23, 1964, the respondent's wife
and daughter came to the United. States as visitors; that his wife
has also filed an application for adjustment of her status to that of
a permanent resident; and that action on her application is being
held in abeyance pending the outcome of the respondent's Case. .
  The business which the respondent supposedly disposed of after
he received his visa aPpeers to be a family enterprise. No details
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                                              Interim Decision #15.SS

of a formal transfer thereof have been furnished. It is presently
being conducted by the respondent's brother who remained on Tonga.
For all the record. shows, there was merely an arrangement to have
the brother still in Tonga continue to operate the family concern in
the respondent's absence. Also, this aspect of the'ease is somewhat
confused by the fact that respondent's brother irik this country, a
naturalized citizen, admits he told the Service there had been a sale
of the business to spite the respondent, who had committed several
traffic violations in his brother's car and the latter had been held
responsible for them.
  Also, it appears that the respondent had not yet become employed
                                                                           -atheimsplconfradjutmeswfildout
to show him as "unemployed." It is not entirely clear whether the
respondent or his brother completed the form. But it is clear that
when same was considered by the Service, the respondent's brother
was present: that he supplied answers for the respondent; thgt their
personal differences had not then been resolved; and that the brother
was then desirous of having the respondent deported. It is also
evident that the respondent, who had only recently arrived in the
United States, was relying on his brother's assistance to a great
extent.
  The respondent's statement that "it was his intention to remain
permanently in the United States" was, as indicated by the special
inquiry officer, qualified by the phrase "if he could." 'Thus limited,
the respondent's recital is not necessarily indicative of i precon
ceived intent to circumvent the normal immigrant visa-issuing process. Very reasonably, the appended condition could be interpreted
as a mental reservation depending 'for fulfillment upon future facts.
and the law permitting the possibility to become a reality.
   Under the foregbing circumstances, and with particular attention
to tli brother's bias, which cannot, be ignored, we cannot conclude
that the evidence of record as to the bona fides of the respondent
at the time of his entry is sufficiently clear to serve as -a- basis for
denying relief herein,"as a matter of discretion. In any event, in a
prior precedent decision apparently referred to by the special inquiry
officer (Matter of Tut. Dee. No. 1466), we clearly pointed
out that a preconceived plan" by an alien to come to the -United
States as a nonimmigrant and thereafter receive permanent resident
status, would not necessarily require a decision adverse to The alien.
We specifically pointed out therein that there are, conceivably, inStances where substantial equities may intervene and warrant favorable exercise of relief as a matter of discretion.

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     Interim Decision ,#158$            •
         •
    - Here, we are now confronted with a minor native-born citizen
     child - of -tender 'years. One of the respondent's brothers is a •a-
     thralized citizen of this country. His wife and their alien child
     are. here. The re.spcnident is presently employed by Trans World
    Airlines at a salary of $417 a month and appears to be able to
    support his . family properly; Under these circumstances, and in
    view of the foregoing, it is our judgment that denial of relief here
    is not warranted on the basis of discretiOn. However, the applies-
  . thin must be denied on the ground of ineligibility.
       Section 245 (a) of the Immigration and Nationality Act, as amended (8 U.S.C. 1255), requires, inter cilia, that an alien applicant for
    relief thereunder must be eligible to receive an immigrant visa, and
    that an immigrant visa be immediately available to him at the time
    his application is approved. As the brother of S. United States
    eitisen;.reipondent may be entitled to preference status under section 203(a) (5) of the Act (8 U.S.C. 1153), but 8 CFR 245.1(d)
    specifically provides that an alien so situated "…•• * is not eligible
    for the benefits of section 245 of the Act unless he is the beneficiary
    of a .valid unexpired visa petition filed in accordance with Part 204
    of this chapter and approved to accord him' such Status. …• *"; and
   it does not appear that the respondent can now meet this require-
• meld. Alternatively, because of his employment previously mentioned, respondent would be entitled to nonpreference status; but 8 •
    CFR 245.1(e) specifies that such an alien "S *, * is not eligible for •
   •the benefits of section 245 of the Act unless he presents with his
    application a certification issued by the Secretary of. Labor under
    section 212(a) (14) of the Act (8 U.S.C. 1182), or unless he estab-
. lishes that his occupation is included in the current Iist of categories
  of employment for which the Secretary of Esher he issued a blanket
  certification under that section (Schedule A, 29 CFR 60) :"; and '
  the record does not demonstrate compliance with this condition:
    As the record now stands, the special inquiry officer's decision must
  be affirmed. However, the factors discussed in • the preceding paragraph may properly be taken into consideration by the 'appropriate
  District Director of the Immigration and Naturalization Service
  in setting the time for the respondent's voluntary departure or deportation. Also, in the event circumstances arise which change the
  legal posture of the case, there is available 4o the respondent, a
• remedy by way of a motion for reconsideration.
    ORDER: It is ordered that the appeal be dismissed.



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