Interim Decision #1865
MATrER OF TAvnn
In Deportation Proceedings
A-12937196
Decided by Board May 01,1968
Notwithstanding his recent marriage to a U.S. citizen, a native and citizen of
Libya who originally came to this country as a student in 1961 on a scholarsifip•
financed by his government with the understanding he would return to Libya
so his country would benefit from his education and who in 1064 decided
against returning but did not notify his government of that intention, is denied
adjustment of status under section 245, Immigration and Nationality Act, as
amended, as a matter of discretion, in view of his lack of a showing of good
faith in his dealings with his government ; there Is no evidence the Government
of Libya has accepted his offer to repay the cost of his education here; and
the Department of State advises that approval of the application would have an
adverse effect on relations with the Government of Libya.
CHARGE:
Order: Act of 1952—Seetion 241 (a) (2) [8 U.S.C. 1251(a) (2 ) 3—Remained!
longer—student.
ON BEHALF OF RESPONDENT : ON BEHALF OF SERVICE:
luciaara Harrington, Esquire Irving A. Appleman
593 Market Street Appellate Trial Attorney
San Francisco, Calif. 94105 Stephen M. Suffin
(Brief submitted) Trial Attorney
(Brief filed)
The case comes forward on appeal from the order of the special
inquiry officer dated January 31, 1968, denying the application for
status as a permanent resident under section 245 of the Immigration
and Nationality Act; granting voluntary departure in lieu of deportation with the alternative order that if the respondent failed to leavewhen as required he be deported to Germany on the charge contained
in the order to show cause; further ordering that if Germany was unwilling to accept the respondent or failed to so advise within three
months following original inquiry, he be deported to Libya; and further ordering that respondent's application under section 243(h) of
the Immigration and Nationality Act to withhold deportation to
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Interim Decision #1865
Libya because of persecution by reason of his political opinion be
-denied.
The record relates to a native and citizen of Libya, 27 years old,
who last entered the United States as a student at New York on
-
August 7, 1965. Extensions of student status were granted until March
16, 1967. On March 27, 1967, his application for permanent residence
'status under section 245 of the Act was denied and be was given until
December 27, 1967 within which to depart voluntarily from the United
States. He has failed to so depart and is deportable on the charge
contained in the order to show cause.
At the deportation hearing the respondent reapplied for status as
a permanent resident. He orginally came to the United States as a
-student in 1961 under a scholarship awarded by the Libyan Government. He was aware that he was expected to return to Libya so that
his country would benefit from his education. The expenses of his
-education in this country amount to approximately $20,000. In 1964
he decided against returning to Libya but did not notify the government of that country of his intention. He testified that he saw no
point in so doing and further admitted that one of the reasons could
'have been the possible loss of his scholarship. He received a degree
of Bachelor of Science in Electrical Engineering from the University
of California on June 13, 1967, and is presently employed by that
University.
The respondent married a United States citizen on December 14,
'1967. It is noted that the date of his marriage is subsequent to the
denial of his application for adjustment of status by the District
Director on November 27, 1967. The respondent states that he is
willing to repay the cost of his education at a starting rate of $1,000
-
per year, but there is no evidence that this offer has been accepted by
-the Libyan Goverzunent. He testified that by reason of his marriage
to a non-Libyan, he would be disqualified from working for the Government of Libya, but this claim is also unsupported.
The grant of adjustment of status pursuant to section 245 of the
'Immigration and Nationality Act, is by its very terms, entrusted to
the discretion of the Attorney General. The respondent has submitted
a letter from the University of California, dated December 6, 1967
-which describes an expected contract from NASA to prepare an
•experiment for an Apollo Applications mission, and that the respondent is expected to be a key person in discharging their responsibility
under this contract. Meanwhile he has been working on another project, an evaluation of the White Mountains for an infrared observatory.
Upon questioning, it developed that outside of the fact that respondent
was an electrical engineer, he had no special qualifications for the
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project other than some laboratory work, and that the difficulty would
appear to be one of recruitment of a replacement.
A letter from the Department of State, dated November 13, 1967,
advises of a letter received from the Embassy of Libya which is dated
October 23, 1967 and is enclosed. The Department of State observes
that the Libyan Government has recently decided to send a large
number of its top secondary school graduates to the United States
-
for higher education and that the loss of a person such as the respondent might tend to discourage a trend of Libyan training practices that
the department strongly favors. Therefore the department is of the
opinion that the approval of the application would have an adverse
-effect on relations with the Government of Libya.
The communication from the Counselor of the Embassy of the Kinggiom of Libya, referred to above, recites that scholarships are awarded
to those worthy young Libyans who possess the highest qualifications
and potential; the recipients are under moral and legal obligation to
return to their homeland and to repay with several years of service
the huge investment made in them by their government; when the
respondent accepted the scholarship from the Libyan government,
he was well aware of these conditions and that he would be violating his
agreement with the Libyan government by remaining in the United
States. The communication concludes that the respondent, who has
benefitted so greatly from his country's concern and generosity, should
return to Libya and contribute to his country's progress and development.
The special inquiry officer refers to the decision in Matter of Youssef, 11 I. & N. Dec. 163, as controlling in the instant case. In that
case a student from the United Arab Republic who came to the United
States on a scholarship from his government to do graduate work,
entered into an agreement with his government that he would not
marry without its permission, that after obtaining a Ph.D. degree he
would work for his government for a maximum period of seven years,
and that if he did not comply with these conditions, he agreed to refund
all money received by him in the form of salary and expenses while
he was under scholarship; and who, by a subsequent marriage to a
United States citizen without permission, broke the contract, noncompliance with which committed him to refund all the money he
received under this scholarship. Adjustment of status under section
245 was denied as a matter of discretion in the absence of a showing
that his government did not want him back or that he had made adequate financial arrangements to discharge his obligations to his government, or that he had been relieved of this obligation.
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Iliterun Decision Flow
While we agree with the denial of the visa petition, we do not feel
restricted to the precedent cited by the special inquiry officer in the
instant case. In addition to a lack of showing of good faith on the
part of the respondent in his dealings with the Libyan government,
his marriage to a United States citizen occurred on December 14, 1967,
a date which was subsequent to the denial of his application for adjustment of status under section 245 by the District Director on November 27, 1967. His wife was aware of his immigration status at
the time she married him. We do not consider this recent marriage
to a United States citizen a factor sufficiently favorable as to outweigh
the other unfavorable aspect of the case which has been outlined
above. Upon a full consideration of the entire record, it is concluded
that the application for adjustment of status under section 245 should
be denied as a matter of discretion. We believe the argument of counsel
regarding the necessity for a waiver in the case of an exchange student
to be entirely irrelevant.
The respondent has made application under section 243(h) of the
Immigration and Nationality Act for withholding of deportation to
Libya on the ground that he would be persecuted. He testified there
are many things about the system of government in Libya of which
he does not approve and which he believes he will voice if returned
to that country. However, he admitted that if he did remain silent,
be would suffer no persecution. The respondent has offered no documentary evidence of the likelihood of persecution. In our opinion the
respondent has not established that he would be subject to persecution
on account of race, religion or political opinion or even the probability
of such persecution. We concur in the decision that the application for
withholding of deportation should be denied. The appeal will be dismissed.
ORDER: It is ordered that the.appeal be and the same is hereby
dismissed.
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