WONG

                                                      Interim Decision #1778




                               MATTER or Woo

                          In Exclusion Proceedings
                                  A-10096314
                   Decided by Board September 7, 1967
Jurisdiction to consider an application for adjustment of status under section
  245, Immigration and Nationality Act, as amended, by an alien excluded and
  paroled into the United States, who has not been served with an order to show
  cause or a warrant of arrest, lies with the District Director (8 CFR 245.2(a) ).
EXCLUDED : ACt of 1824—NO immigration visa.
           Executive Order No. 8706—No passport.
  ON BEHALF OF APPELLANT •                   ON BEHALF OF SERVICE:
     Elmer Erica, Maguire                     Allan A. Shader
    515 Madison Avenue                        Trial Attorney
    New York. New York 10022                   Brief filed)
    (Brief filed)

  The case comes forward on motion of counsel dated March 29, 1967
requesting that the "deportation" proceeding 1 be reopened to allow
the respondent to apply for the privilege of adjustment of status under section 245 of the Immigration and Nationality Act, as amended.
The new facts set forth are that since the entry of the final order
herein, a relative visa petition has been approved granting the respondent immediate relative status (201 (b) ) ; that the alien is eligible
to receive an. immigrant visa and is admissible to the United States
for permanent residence and an immigrant visa is immediately available to him at the time his application will be approved; and that he
has become, in all respects, eligible for adjustment of status under
section 245 of the Immigration and Nationality 'Act, as amended.
  This case was previously before us on September 30, 1952 on appeal
from an order 'entered by the Acting Assistant Commissioner on May
28, 1952, affirming the appellant's exclusion from the United States
by a Board of Special Inquiry on the above-stated grounds. Briefly,
the record relates to a native and citizen of China, born February 3,
   It is assumed that the reference to a deportation proceeding rather than to
an exclusion proceeding is an Inadvertent error.

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Interim Decision #1778
 1912, male, married, who arrived at the port of New York on December 25, 1951, claiming to be Wong Ling, a son of Wong Wing, a United
 States citizen. On the basis of the appellant's testimony that he believed himself to be the blood son of Wong Wing and Lee Shee, he
was issued a travel affidavit on November 27, 1951 by the American
Consul at Hong Kong. However, the findings before a Board of Spe-
.cial Inquiry established that the appellant was an adopted son and did
not acquire citizenship under the provisions of section 1993 of the Revised. Statutes. He was thereupon ordered excluded. Subsequently, on
 October 10, 1952, an order of parole was entered. A visa petition filed
by Connie Wei for immediate relative status under section 201(b) of
the Immigration and Nationality Act, as amended, was approved on
February 24, 1967.
   The trial attorney has filed a brief in opposition to the motion to
reopen, asserting that under section 245 of the Immigration and Nationality Act, the appellant is ineligible for such relief, inasmuch as
he has not been inspected and admitted but excluded from the United
States on his false claim to citizenship in 1952; thus, he is ineligible
for section 245 relief. The alien's counsel has filed a brief claiming that
the alien has been paroled into the United States and is therefore
eligible under section 245 of the Immigation and Nationality Act;
and that a hearing should be held before a special inquiry officer.
   We believe the matter is covered by regulation, 8 CFR 245.2(a),
which provides as follows :
  Au application for adjustment of status under section 245 of the Act … by
an alien after he ban been served with an order to show cause or a warrant of
arrest shall be made and considered only in proceedings under Part 242 of this
chapter. In any other ease, an alien who believes that he meets the eligibility
requirements of section 245 of the Act * " and section 245.1 shall apply to the
district director having jurisdiction over his place of residence.
   In the present case, an order to show cause or a warrant of arrest
has never been issued. Therefore, the consideration of eligibility under
section 245 of the Immigration and Nationality Act lies within the
jurisdiction of the District Director as provided by the above regulation. The motion will be denied. without prejudice to renewal before
the District Director.
  ORDER: It is ordered that the motion to reopen be denied.




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