TONGA

Interim Decision #1730




                             MATTER OF TONGA

                       In Deportation Proceedings

                                 A-14674907

                     Decided by Board May 8. 1967
.-Notwunstaumne the presence here of a citizen child and brother. respondent's
  application for adjustment of status under section 245, Immigration and Nationalty Act, as amended, is denied as a matter of discretion in view of his
  preconceived intent to remain in the United States permanently at the time he
  obtained his nonimmigrant visitor's visa in 1904, as evidenced by the sale
  shortly thereafter of his business in Tonga and the arrival in this country of
  his alien wife and alien child as visitors approximately 2 months following
  his entry.
CHARGE :
  Order : Act of 1052—Section 241 (a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant (temporary visitor)—Remained longer.
Os BEHALF OF RESPONDENT:                   ON BEHALF OF SERVICE
  Harold b. Kline, Esquire                  Stephen M. Snifin
  580 Washington Street                     Trial Attorney
  San Francisco, California 94111            t Brief Sled)
  (Brief filed)

  On November 26,1965, the special inquiry officer denied the respondent's application for adjustment of status to that of a permanent resident, as a matter of administrative discretion; 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. On May 23,
1966, this Board dismissed the appeal from that order of the special
inquiry officer, but solely on the ground that the respondent was not
statutorily eligible for the relief under consideration. On September 2,
1966, we ordered the proceedings reopened for reconsideration of the
question of adjustment of the respondent's status, on the basis of a
primary showing of statutory eligibility therefor. On November 18,
1966, the special inquiry officer reinstated his original decision in the
case. The respondent's appeal from that latter decision of the special

                                     212
                                              Interim Decision #1730
inquiry officer, which again brings the case before this Board for
consideration, 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 application for
adjustment of status to that of a permanent resident was administratively denied. He was then granted until August 22, 1965, to depart
from the United States voluntarily. On August 6, 1965, the respondent
having indicated that he did not desire to depart but, rather, to
renew his application for adjustment of status in deportation proceedings, the privilege of voluntary departure was revoked. These
proceedings followed.
   The foregoing establishes the respondent's deportability on the
 charge contained in the order to show cause, which was conceded in
 the course of the hearing before the special inquiry officer and stands
 unchallenged here. The special inquiry officer has already granted the
 respondent the privilege of voluntary departure, and the record before
 us supports said official's action in this respect. The only question
 remaining for our consideration is whether the special inquiry officer
has properly denied the respondent's application for 'adjustment of
his status to that of a permanent resident, as a matter of administrative
 discretion.
   The facts and circumstances on which respondent's request for
adjustment of his status are predicated have been adequately discussed
in the prior opinions in this case and need not be restated here in their
entirety. Briefly, the respondent's wife and their alien child cams to
the United States as visitors on December 28, 1964, approximately two
months after respondent's arrival. They also now have a native-born
citizen child of tender years. One of the respondent's brothers is a
naturalized citizen of the United States. The respondent is presently
employed by Trans World Airlines at a salary of $417 a month, and
appears to be able to support his family properly.
   Before proceeding to a disposition of the case on the merits, brief
comment is required concerning our original decision herein, which.was
made a precedent (Int. Dec. No. 1588). Apparently, a misunderstanding of the intent and effect thereof. has arisen in the minds of the
special inquiry officer, the trial attorney and counsel for the
respondent.
   The sole basis for our initial decision was the respondent's then
statutory ineligibility for relief. Obviously, therefore, any discussion
in our opinion at that time as to the question of whether or not favorable exercise of relief was warranted was of secondary importance

                                  213
Interim Decision #1730
 and not decisive. We did discuss that aspect of the case, but only because it was then apparent to us that the special inquiry officer had
 concluded his inquiry along those lines with the establishment of the
 fact that the respondent had formed a "preconceived intent" to remain
in the United States and, thus, to circumvent the normal visa issuing
 process, infra. We merely pointed out that there were other factors
which had to be considered, to wit, intervening equities. We did not
then decide, because we were not called upon to do so, that the factors
in this case were of such an unusually meritorious nature as to call for
favorable exercise of discretion.
   The record reflects that this respondent had applied to the United
States Counsul in Fiji for an immigrant visa in 1961. When he applied
for the visitor's visa with which he gained admission to the United
States in 1964, he sent a letter to that Consul stating that he wished to
come to this country as a visitor, and that he would have to return to
Tonga because he was employed and his wife and child were there.
However, as soon as the respondent received a nonimmigrant visa, he
sold his business in Tonga. About two months after his arrival in the
United States, his alien wife and child came to this country—likewise
as visitors.. Also, the respondent has testified that when he 'came here
he intended to remain permanently, if he could.
   We agree with the special inquiry officer that the foregoing factors
establish that the respondent had a preconceived intent to remain in
the United States permanently. The fact that his alien wife and child
followed him here so closely is clearly indicative of an overall scheme
for the entire family to circumvent the normal consular visa issuing
process. In our opinion, the misrepresentations to the consul abroad
thus established constitute unfavorable factors which outweigh the
favorable ones, to wit, the presence here of a citizen child and brother.
Accordingly, we conclude that the special inquiry officer has properly
denied respondent's request for this extraordinary form of discretionary relief. His decision, therefore, is affirmed.
  ORDER : It is ordered that the appeal be dismissed.
  I His wife has also applied for adjustment of status, and a decision thereon is

being held in abeyance pending a decision in this case.




                                      214