MUSLEMI

                                                     Interim Decision #1739




                           Ms min or MIISLED11

                       In Deportation Proceedings
                                 A-17256526
                     Decided by Board May 31,1967
In the absence of overriding equities, adjustment of status under section 245,
  Immigration and Nationality Act, as amended, is denied, as a matter of discretion, in the case of respondent who entered the United States as a nonimmigrant but with the preconceived intent to marry his United States citizen
  paramour and remain here permanently.
CHARGE •

  Order: Act of 1952—Section 241(a) (1) r8 U.S.C. 1251(a) (1)1—Excludable
                       by law existing at time of entry (section 212(a) (20),
                      Immigration and Nationality Act; 8 U.S.C. 1182)—
                      Immigrant, no visa.
ON BEHALF OF RESPONDENT :                    ON BEHALF OF SERVICE:
  Milton T. Simmons, Esquire                  Robert A. Vielbaber
  Phelan, Simmons & Ungar                     Appellate Trial Attorney
  1210 Mills Tower                            (Oral argument)
  220 Bush Street                             Stephen 11. Suffin
  San Francisco, Calif. 94104                 Trial Attorney
  (Counsel not present at oral argu-          (Brief flied)
    ment but submitted a brief in
    support of the special inquiry
    officer's decision)

   The Immigration and Naturalization Service has appealed from a
special inquiry officer's order of January 25, 1967, directing that the
respondent's application for adustment of his status to that of a permanent resident, under section 245 of the Immigration and Nationality Act, be granted. Its appeal will be sustained.
   The record relates to a 23-year-old male alien, a native of India
And citizen of Iran, who last entered the United States on or about
January 4, 1966, He was then admitted as a. nonimmigrant temporary
visitor, and he was subsequently authorized to remain in this country
in that status until September 3, 1966. It was his intention, after coming to the United States, to apply for status as a permanent resident

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 and to stay permanently, if he could. He was, therefore, an immigrant
 at the time of his entry. However, he was not then in possession of an
 immigrant visa.
   On the basis of the foregoing, we concur in the special inquiry
 officer's conclusion that the respondent's deportability on the charge
 contained in the order to show cause is sustained_ This is unchallenged here.
   The special inquiry officer felt constrained to grant this respondent's
 application for adjustment of his status to that of a permanent resident because of a prior precedent decision of this Board (Matter of
Tonga, A 14674907, 5/23/66; Int. Dec. No. 1588). Counsel for the
          -


respondent, in his brief in support of the special inquiry officer's decision, also expresses the opinion that our decision in that case required the action taken by the special inquiry officer. Before proceeding to a. disposition of this respondent's application on the merits, we
will briefly'point out the reasons why their reliance on that precedent
decision was misplaced.
   The trial attorney, in his succinct appeal brief, has cited numerous precedent decisions of this Board holding that circumvention of
the visa-issuing function of an American Consul abroad is a major
adverse factor to be considered in the evaluation of an application
for adjustment of status which, in the absence of exceptionally strong
intervening equities, should result in the denial of adjustment of
status, aS a matter of discretion. Our decision in Matter of Tonga,
avyta, was not intended to and did not overrule the precedent decisions referred to by the trial attorney. The sole basis for our initial
decision in Tonga was his 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 and not decisive. We did discuss that aspect of the case at that time, 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. We then 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 Tonga's case were of such an unusually meritorious nature
as to call for favorable exercise of discretion. (Note: On May 3,
1967, we found they were not.)
   The respondent is. now married to a native-born citizen of the
United States whom he met in Bombay, India. At the time, she was
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living with her first husband who was then an employee of the
Bank of America there, was as the respondent. Marriage in India
being impractical, the respondent and his now wife evolved a plan
whereby she would return to the United States and obtain a divorce;
the respondent would enter the United States as a visitor; they would
be married; and he would then apply for adjustment of his status
to that of a permanent resident.
  In furtherance of the foregoing plan, the respondent obtained a
nonimmigrant visitor's visa from the American Consulate General at
Bombay, India. On his application for the visa, he stated that he intended to visit in the United States for three months (p. 9). He did not
tell the Consul his true purpose in coming to the United States, because
he was afraid that if ha had told the truth he might not obtain his
visa (p. 7).
  As indicated above, the respondent was admitted to the United
States as a visitor on January 4, 1968. His citizen wife subsequently
obtained a divorce terminating her first marriage. She and the respondent were thereafter married. at Reno, Nevada, on September 7,
1966.
   The respondent is employed as a waiter and dishwasher in a restaurant earning $16 a day. His wife makes approximately $300 a month
for her services as a clerk-typist. The two children of her first marriage reside with and are cared for by the parents of her first husband.
   We agree with the Service that the foregoing factors establish that
the respondent was not a bona fide nonimmigrant at the time of his
entry, inasmuch as he then had a preconceived intent to remain in
the United States permanently. His citizen wife,, who accompanied
him to the United States, was a major motivating factor of and a
participator in his plan to circumvent the normal Consular visa issuing process. In our opinion, the misrepresentation to the Consul abroad
thus established constitutes an unfavorable factor which outweighs
the favorable one, to wit, the presence here of a citizen wife.
  In other words, the respondent's only equity in this case is the
presence here of a citizen wife. In our opinion, this is more than offset
by her participation in the deceit practiced by her husband, the respondent. We do not think they should be permitted to plead their
own deceit as the basis for the favorable exercise of discretion. Accordingly, we conclude that the special inquiry officer has improperly
granted the respondent's request for the extraordinary discretionary
relidf of adjustment of status to that of a permanent resident. His decision, therefore, is reversed.
   Both the respondent and his wife have admitted that they lived together as husband-wife before she obtained the divorce terminating

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Interim. Decision #1739
her first marriage. In addition, the respondent has testified that when
 applying for an extension of his stay in the United States as a temporary visitor, on or about September 1, 1966, he lied to an immigration officer about having an airline ticket with which to depart from
the United States (p. 16) ; and that he did not admit the truth of the
matter to the immigration officer until the latter came to his apartment about an hour later (p. 17). Under these circumstances, we do
not think that favorable exercise of discretionary relief in the form
of voluntary departure is warranted in these premises.
   In conclusion, the respondent reluctantly specified India as the
country to which he should be deported, in the event such action became necessary. That is the country of his nativity. We will direct
his deportation thereto.
  ORDER: It is ordered that the Service appeal be sustained; that
the special inquiry officer's order of January 25, 1967, be withdrawn;
and that the respondent be deported from the United States to India
on the Charge contained in the order to show cause.




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