CHAU

Interim Decision #1625




                              Marna OF CHArT
                        In Deportation Proceedings
                                  A.-15956130
                     Decided by Board July fi7, 1908
Motion to reopen deportation proceedings to permit application for adjustment
 of shift's tinder tbe. proviso to section 203(a) (7), Immigration and Nationality Act, as amended by P.L. 89-236, is denied since respondent, who has not
 been continuously physically present in the 'United States for a period of
 at least 2 years prior to his application, is statutorily ineligible for such relief, and further, since a record of permanent residence as a refugee under
 section 203(a) (7) can be created only in accordance with the procedures established for section 245 of the Act, and respondent, a crewman, is statutorily ineligible for the benefits of section 245.
CEARGE:
  Order: Act of 1952--Section 241(a) (2) (8       12513—Nonimmigrant
                       (enawman)—Ramained longer.


  On November 12, 1965, the special inquiry officer granted the
respondent's application for voluntary departure, but provided for
his deportation from the United States to Hong Kong, alternatively
to the Republic of China on Formosa, on the charge contained in
the order to show cause, in the event of his failure to so depart.
  In accordance with the foregoing decision, the date for the respondent's voluntary departure was set as December 14, 1965. Respondent,
however, failed to so depart. Accordingly, a warrant for his deportation was issued on February 2, 1966.
  Thereafter, the respondent moved to reopen the deportation proceedings against him to give him an opportunity to apply for
adjustment of his status under the provisions of section 203 (a) (7)
of the Immigration and Nationality Act, as amended (8 U.S.C.
1103). Concomitantly, he requested a stay of deportation pending
a decision on said motion, which was denied by the District Director
at New York on March 18, 1966. Thereupon, action for a declaratory judgment was filed in the United States District Court for the
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Southern District of New York challenging the denial of the stay
of deportation by the District Director, pending adjudication of the
respondent's motion. Apparently, a delision has not yet been
rendered.
  On March 28, 1966, the special inquiry officer denied the respondent's motion to reopen the proceedings, on the ground that at this
time he has no relief available to him under section 203(a) (7) of
the Immigration and Nationality Act and that, therefore, no useful
purpose would be served by reopening the proceedings. The appeal
from that decision, which brings the case before this Board for
consideration, will be dismissed.
  The record relates to a 52-year-old male alien, married, 1 who is
a native and citizen of China. He last entered the United States
on or about August 23, 1965. He was then admitted as a nonimmigrant crewman, authorized to remain in this country for the period
of time his vessel was to remain in port, but in no event to exceed
29 days.
     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 is
uncontested here. This aspect of the case, therefore, needs no further
discussion.
   The special inquiry officer granted the respondent's request for
voluntary departure, which was, originally the only relief sought in
these premises. Suffice it to say, in this connection, that the record
before us supports said official's action on this respect. The only
additional comment required on the point is that the respondent
failed to take advantage of that privilege.
   Upon careful consideration of the entire evidence of record,
together with the representations throughout, it is our judgment that
the special inquiry officer. has properly denied the 'respondent's
motion to reopen the proceedings to permit him to apply for adjustment of his status as a refugee within the purview of section
203(a) (7, of the IniMigration and Nationality Act, as- amended,
and thus qualify for conditional entry into the United States. Under
the proviso to that section, immigrant visas shall be available in lieu
 of conditional entries to such aliens as have been continuously present in the United States for a period of at least two years prior to
application for adjustment of status. The respondent last arrived in
the United States as a crewman on August 23, 1965. Under the law,
he is ineligible to apply for adjustment of status under the proviso
 1   331s alien wife and their four alien children reside in Hong Kong.

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to section 203 (a) (7) of the Immigration. and Nationality Act, as
 amended. His application as a refugee must be made outside the
United States (8 CFR 235.9).
   Under 8 CFR 245.4 adjustment of status under the proviso to
section 203(a) (7) of the Immigration and Nationality Act is governed by section 245 of that Act and the regulations promulgated
pursuant thereto. Under section 245 of the Act, as amended, such
adjustment is not available to an alien who upon arrival was serving
as a crewman. As stated, the respondent last arrived in this country
on August 23, 1965, as a crewman.
   In view of the foregoing, reopening of the deportation proceedings would be a useless act. It has been judicially determined that
adjustment of status of aliens in the United States, under section
203(a) (7) of the Immigration and 'Nationality Act, must be carried
out under section 245 of that Act; and that crewmen such as this
respondent are ineligible therefor (See Tai Mui v. Esperely,
So. Dist., New York, 66 Civ. 316, 5/4/66).
   While an appeal has been filed in the foregoing case, we feel that
the decision therein, involving a factual situation substantially
similar to that of the present case, provides an excellent analysis of
the pertinent statutory and regulatory provisions and is dispositive
of this appeal. For the reasons stated therein, which need no
repetition, here; reopening of these proceedings would serve no useful
purpose.
   The only additional comment required in this ease is that we have
noted counsel's contention that the Service is unduly delaying action
on the-visa petition filed in the respondent's behalf. Suffice it to say
on this point that the matter thus raised is not properly for the
consideration of this Board.
   ORDER; It is ordered that the appeal be and the same is hereby
dismissed.




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