VANISI

Interim Decision 40836




                            MATTER OF VAN18I

                       In Deportation Proceedings
                                 A-14683916
                  Decided by Board February 7, 1968
Since the motion to reconsider compiles with the provisions at 8 OF11 242.22
  and 8 CM 248.8 requiring, among other things, that the new evidence is
  material and could not have been discovered or presented at the hearing, Service motion is granted to reconsider the order under section 245, Immigration
  and Nationality Act, as amended, adjusting respondent's statue conditioned
  upon the obtainment of a quota number from the Department of State, where
  the assignment of a quota number, although available, was never finalized,
  issuance to respondent of Form 1-151 appears attributable to clerical error,
  and at the time of filing of the motion no record or permanent residence bad
  as yet been created.
CHAnoss:
  Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ]—Remained
                      longer, visitor.
ON Mums, OF R2SPOPDICRT:                   OR BEHALF or Szavzon:
 Donald D. Ungar, =Quire                    B. A. Vieihaber
  517 Washington Street                     Appellate Trial Attorney
  San Francisco, Calif. 94111               Stephen M. Suflin
  (Brief filed)                             Trial Attorney
                                            (Brier niee)


   The case comes forward upon certification by the special inquiry
officer of his order dated September 18, 1967 denying the Service motion to reopen the proceedings.
   The respondent, a native and citizen of Tonga, 25 years old, female,.
was admitted to the United States at Honolulu, Hawaii on or about
January 25, 1965 as a visitor. The respondent was accorded a hearing
before a special inquiry officer on July 18, 1967, was found deportable
on the charge stated in the order to show cause. During the course of
the hearing she applied for status as a permanent resident under section
245 of the Immigration and Nationality Act. In her sworn application
for such 'status on Jun' e 15; 1965, the respondent stated she was not
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married. The special inquiry officer on July 18, 1967 granted the application for permanent resident status conditioned upon the Service
obtaining from the Department of State a quota number under the
Tongan quota. No appeal was taken from this decision.
  On August 10, 1967 the trial attorney for the Service filed a motion
to reopen the proceedings to offer evidence which was material to the
question of whether the respondent's application merited the favorable exercise of discretion. Attached to the motion was State Department Form FS-508 (Report to the Immigration and Naturalization
Service Concerning an. Individual Alien), dated October 6, 1966
from the American Consulate at Suva, Fiji Islands, which indicated
that Slone Moala had married the respondent on January 9, 1965 and
feared that she was mailing application as a single person; the plans
were for the respondent to go first, her husband would join her later
as a visitor, and once in. the United States thay intended to remain
permanently_ The Consulate's communication further indicated that
the Consulate had informally refused a visitor's visa to the respondent
for failure to overcome presumption of immigrant status; she was
instructed to appear in person if she wished to pursue her application •
the result of which would have been a formal refusal. However the
respondent did not follow up her application with the Consulate, instead went to Pago Pago, American Samoa and obtained her visitor's
visa from that office. The Consulate indicated that many Tongans
obtained'nonimmigrant visas from Pago Pago before the Consulate
was able to take preventative measures. The Form FS-508 was received
in the San Francisco District Office on October 10, 1966 but because
of a backlog of work it was not until July 1967 that the Form FS-508
was indexed and routed to the administrative file relating to the
respondent.
   Counsel for the respondent argues that a grant of permanent resident status, once filed, cannot be attacked except in accordance with
the statute enacted for that purpose : to wit, section 246 ; and, in addition, the motion of the Service does not comply with the regulations
relating to the reopening of deportation proceedings since it did not
appear the evidence sought to be offered was not available and could
not have been discovered or presented at the hearing (8 CFR 242.22).
In reply, the trial attorney also relied upon 8 CFR 242.22 that there
was no obstacle to reopening the proceedings.
  In his decision on the motion, the special inquiry officer pointed nut
that had the evidence which the Service discovered been presented
to him at the hearing, it might wellhave caused him to deny respondent's application for permanent resident status; that in light of the
District Director's explanation for the failure to have presented the
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 evidence, "it was not available and could not have been discovered
or presented at the hearing" within the meaning of the regulations.
However, the special inquiry officer distinguishes the case of Matter
of Ta&nos, Int. Dec. No. 1770 (August 11, 1967), on the ground that
while the Board of Immigration Appeals may have the power, after
it enters a decision adjusting the alien to that of a permanent resident,
to order the execution of its decision held in abeyance and thereafter
to reverse itself, there was no regulation giving a special inquiry
officer such authority, and he therefore found that he had no authority
to reopen the instant proceedings. He denied the motion to reopen but
because of the doubt engendered by the action in Talanoa, certified
the case to this Board.
   When the motion to reopen was filed on August 10, 1967, it set forth
that a quota number was issued for use of the alien during August
1967. At oral argument it was pointed out by the appellate trial attorney that due to a combination of clerical errors the respondent
received through the mail her Form 1-151, Alien Registration Receipt
Card, in the latter part of August 1967 but that at the time of filing
of the motion no record had as yet been created for permanent
residence.
   The present proceeding is a deportation proceeding conducted under
the authority of section 242 (b) of the Immigration and Nationality
 Act. 8 CFR 242.17 relates to ancillary matters—(a) creation of the
 status of an alien lawfully admitted for permanent residence pursuant
to sections 244(a), 245 and 249 of the Act, (b) voluntary departure,
 (c) temporary withholding of deportation. 8 CFR 242.22 provides
for reopening or reconsideration and states that a motion to reopen
will not be granted unless the special inquiry officer is satisfied that
the evidence to be offered is material and was not available and could
not have been discovered or presented at the hearing. The, special
inquiry officer has stated he is satisfied that the evidence to be offered
was material and was not available and could not have been discovered
or presented at the hearing.
   Section 246 of the Immigration and Nationality Act and 8 CFR
246 provides for recission of adjustment of status. 8 CFR 246.8 provides that the special inquiry officer may upon his own motion, upon
motion of the trial• attorney or the respondent, reopen or reconsider
any case in which he has made a decision, unless jurisdiction in the
case is vested in the'lloard of Immigration Appeals. A motion to
reopen will not be granted by the special inquiry officer unlifts he is
satisfied that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the
hearing.

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                                              Interim Decision ,4*1836,
  Both regulations, 8 CFR 242.22 and 246.8, provide that motions
to reopen shall be subject to the requirements of 8 CFR 103.5. Both
regulations require that the motion state the new facts to be presented
at the reopened proceeding and be supported by affidavits or other
evidentiary material.
  Matter of TaZama, Interim Decision No. 1770, involved a native
and . citizen of Tonga, who applied for. adjustment of status at a
dep ortation hearing in February 1964. After several decisions and
motions to reopen the special inquiry officer on July 12, 1966 finally
granted adjustment of status in the exercise of discretion upon condition that a quota number be allocated to respondent by the Department of State. The Service appealed and on February 10, 1967 the
Board affirmed the special inquiry officer's decision and dismissed the
Service appeal. On March 13, 1967 the Service moved for reconsideration and reopening, presenting material to show that respondent,
as of December 12, 1966, had been working full time as a fleet serviceman and urged that the finding that the respondent did not require
a labor certification was erroneous. On April 17, 1967 we granted the
Service motion and reopened the proceedings, holding that since the
cessation of Talanoa's business was reasonably contemporaneous with
the hearing, this respondent had the burden of establishing his good
 faith intention of carrying on such business and his ability to do so,
there was a sound basis for reconsideration of his eligibility for adjustment. The special inquiry officer at the reopened hearing held that
the respondent was subject to the changed requirement of the law,
amended while his case was pending, which required certification pursuant to section 212(a) (14), denied adjustment of status but granted
him voluntary departure in lieu of deportation. The Board dismissed
the appeal and found no basis for estoppel.
  The counsel for the respondent in his brief has attempted to distinguish Matter of Talanoa, Int. Dec. No. 1770 on the ground that in
the Talanoa case adjustment had not been officially approved because
a quota number had not yet been made available to him, while in the
instant case a quota number has been made available. However, as
we have previously indicated, the assignment of a quota number was
never finalized and the issuance of an I-151 appears to have been due
to a clerical error. Had the evidence which the Service discovered
been presented to the special inquiry officer at the hearing it might
well have caused him to deny respondent's application for permanent
resident status and in light of the District Director's explanation for
the failure to have presented the evidence, "it was not available and
could not have been discovered or presented at the hearing" within
the meaning of regulations.

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Interim Decision #1836
   We do not believe that the difference in the two cases is significant.
In view of the circumstances of this case, namely, the discovery of
the evidence before the adjustment of status had been granted, the
clerical mix up which resulted in the failure to attach the evidence
            -


to the respondent's file -which resulted in the evidence being not available, and the authority contained in the regulations, we believe that
the reeiesion under section 246 of the Immigration and Nationality
Act is not the sole procedure to rescind the adjustment of status. Under
the circumstances of the case the motion to reopen is proper and will
be granted.
  ORDER: It is ordered that the motion to reopen the proceedings
for the purpose of determining whether respondent merits adjustment
of status under section 245 of the Immigration and Nationality Act,
and for such other purposes as may appear appropriate, bo and the
same is hereby granted.




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