Interim Decision 44697
MATTER OF Raminsz
IN DEPORTATION PROCEEDINGS
A-14676294
Decided by Board February 3, 1957
A.ppHeation for sainstment of status under section 245 of the Immigration and
Nationality Act, as amended, filed by respondent, a native or El Salvador,
prior to December 1, 1965 and denied on appeal by the Board of Immigration
Appeals on January 18, 1966 solely on the ground of statutory ineligibility
under-section 245 as amended by P.L. 89436 as a native of a country of the
Western Hemisphere, upon reconsideration on its merits by the Board is, in the
absence of outstanding equities, denied as a matter of discretion since respondent has no close family ties or dependents in the United States and his
wife and 5 children are natives, nationals and residents of El Salvador, where,
for 15 years, he had been in business as a tailor prior to selling his partnership in that business to finance his trip to this country in 1964.
DEPORTABLE: Act of 1952—Section 241(a) (2) [8 U:S.C. 12517—Non-immigrant
(temporary visitor)—Remained longer.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Donald L. Ungar, Esquire 'Stephen M. andin,
1210 ADM Torres Trial Attorney
220 Bush Street
San Francisco, Calif. 94104
..(Brief filed)
'On November 10, 1965, the special inquiry officer denied the respondent's application for adjustment of his 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 El Salvador, on the charge contained
in the order to show cause, in the event of his failure to so depart.
On. January 18, 1966, this Board dismissed the respondent's appeal
which was directed solely to the special inquiry officer's denial of his
.application for adjustment of status to that of a permanent resident.
Our decision, however, rested solely on the ground that the amendment
to section 245 of the Immigration and Nationality Act (P.L. 89-236),
.effective December 1, 1965, rendered the respondent ineligible for
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Interim Decision #1697
relief thereunder as a native of any country of the Western Hemisphere
or of any adjacent island, to wit, El Salvador.
The trial attorney, acting in behalf of the Immigration and Naturalization Service, now moves that we reconsider our prior decision,
in the light of section 3 of the Act of November 2, 1966 (P.L. 89-732, 80
Stat. 1161), providing that applications for adjustment of status to
that of a permanent resident under section 246 of the Immigration and
Nationality Act, filed by natives of the Western Hemisphere countries
prior to December 1, 1965, can be considered and decided under the law
in effect when they were filed. The request is that, on the basis of this
latest pertinent legislation, we withdraw our order of January 13,
1966; consider the respondent's application for adjustment of his status
!to that of a permanent resident. on the merits; and, finally, that we
affirm the special inquiry officer's order denying his application, as a
matter of administrative discretion.
The record relates to a 48-year-old married male alien, a native and
citizen of El Salvador, who last entered the United States on or about
October 16, 1964. He was then admitted as a nonimmigrant temporary
visitor for a period until March 16, 1965. On June 11, 1965, his application for adjustment of status to that of a permanent resident was
administratively denied. He was thereafter granted the privilege of
departing from the United States voluntarily without the institution of
deportation proceedings for a period which, with extensions, extended
to August 5, 1965. He has, however, remained in this country to the
present time.
The foregoing establishes the respondent's deportability on the
above-stated ground. This was conceded in the course of the hearing
before the special inquiry officer. It stands unchallenged here. This
aspect of the case, accordingly, needs no further discussion.
The special inquiry officer has already granted the respondent the
privilege of voluntary departure. Suffice it to say, in this connection,
that the record before us supports said official's action in this respect.
The respondent's wife and five children are natives, nationals and
residents of El Salvador. He has no relatives in this country. Prior to
coming to the United States, he had been in business as a tailor in El
Salvador for 15 years. He sold his partnership in that business to
finance his trip to the United States, leaving part of the funds derived
from its sale with his wife.
In applying for his temporary visitor's visa, respondent indicated
that he desired to come to the United States for two months to visit
and have his eyesight checked. He did not, however, visit a. doctor until
he had been in this country for nine months.
Approximately two months after his arrival here, respondent began
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Interim Decision *1697
to think that he would like to remain and requested an extension of his
stay so that he could have time to make arrangements to apply for permanent resident status. He gave as his reason for requesting an extension of stay that he would like to spend Christmas here.
As already indicated, the respondent 'left part of the proceeds of
the sale of his tailor shop with his wife when he came to the United
States. Apparently, in view of this fact and the additional fact that
two of his children are employed in El Salvador, the respondent has
not had to send funds to his wife. She apparently has earned some
income from work as a dressmaker. The respondent has been employed
in this country as a tailor, and earns a salary of approximately $100
per week.
In the last analysis, the grant of an application for adjustment of
status as provided for in section 245 of the Immigration and Nationality Act is a discretionary matter. This Board has consistently held
that the extraordinary discretionary relief provided for in that section of the law should only be granted in meritorious cases. (See
Natter of O—T—, A-13326833, B.I.A., 7/16/65; Int. Dec. No. 1508.)
On the basis of the factors hereinbefore recited, we find that there are
no outstanding equities in this case crying out for favorable action on
the application. We particularly note that the respondent has no close
family ties or dependents living in the United States, and that his wife
and their five children are natives, citizens and residents of El Salvador. Our opinion, in this respect, is not altered by the points stressed
in the respondent's reply to the Service motion for reconsideration,
to wit
(1) He is presently exempted by law from the necessity of securing employment certification under the provisions of section 212(a) (14) of the Immigration and Nationality Act (8 U.S.O. 1182), in connection with his application for
adjustment of status in the united Status ,
(2) if he now departs, he will be required to secure such certification before
he may be allowed to return to this country ; and
(3) it would be unnecessarily harsh to require the respondent to leave the
United States after all the time he has been present here, and thereafter perhaps
lose whatever opportunity he may have had to become a permanent resident
Accordingly, we agree with the special inquiry officer that on the basis
of the entire record the respondent's case fails to measure up to the
standard required for favorable exercise of the Attorney General's discretion to adjust his status to that of a permanent resident. That official's decision, therefore, is approved.
ORDER: It is ordered that the motion be granted; that our decision of January 13, 1966, be withdrawn; and that the special inquiry
officer's decision of November 10, 1965, be and the same is hereby
affirmed.
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