LEGER

Interim Decision #1638




                             MaTry,..te OF LEGER

                           Deportation Proceedings
                                 A-14689836
                   Decided by Board August 25, 1966
:Since adjustment of status pursuant to section 245, Immigration and Na-
 . tionality Act, an amended, is discretionary in nature and since respondent
   has not established that his case merits the exercise of such discretion,
   there is no necessity to determine whether respondent, who is engaged in
   the fruit peddling business, is exempt from the presentation of a certification issued by the Secretary of Labor under section 212(a) (14) of the Act.
-thIABGE :
  Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant, remained longer.


    This is an appeal from the decision of the special inquiry officer
 finding the respondent deportable as charged, denying the application for adjustment under section 245, and granting voluntary departure. The appeal will be dismissed.
    The respondent is a 31-year-old married male, native of Tonga and
 citizen of Cheat Britain. He was admitted to the United. States at
 Honolulu, Hawaii, as a visitor for pleasure, on. May 31, 1965, with
 permission to remain wail November 30, 1965. On June 80, 1965,
he submitted an application for adjustment to permanent resident
 status. His application was denied on October 18, 1965, and he
was given until November 12, 1965, to depart. He remained beyond
 that time without authority and has conceded deportability on the
 charge contained in the order to show cause.
   At the deportation hearing, the respondent-renewed his application for section 245 adjustment. The respondent has no immediate
 family in the United States, his wife and three children- being residents of Tonga. When respondent applied for his visitor's visa, he
 indicated that his purpose in coming to the United States was "Holi-
.day", but he has testified that his main parpoie in coming-to the

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"United States was to see if he could remain permaitently. Whatever
investment respondent has made in the fruit peddling business (the
material submitted on appeal does not indicate what portion was
invested by respondent and what portion by his partner) was concededly made after the hearing, at which the special inquiry officer
had rendered his oral decision denying the application.
   The granting of adjustment is discretionary, and is not automatic
upon the establishment of eligibility. There must be outstanding
equities, in a general meritorious case, to warrant it. (Cf. Matter of
Ortiz Prieto, Int. Dec. No. 1508.) Respondent has not presented a
picture that merits the favorable exercise of discretion in his behalf.
There is therefore no • need to consider whether the character of the
peddling business in which respondent has engaged meets the conditions required for the exemption of the respondent from the
presentation of a labor certification.
   ORDER: It is ordered that the appeal be and the same is hereby
dismissed.




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