ARAI

Interim Decision #2027




                              MATTER OF ARAI
                       In Deportation Proceedings
                                A-18483322
                    Decided by Board March 4, 1970
Where adverse factors are present in a given application for adjustment of
 status under section 245, Immigration and Nationality Act, as amended, it
  may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as
  family ties, hardship, length of residence in the United States, etc., will be
  considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion. [Matter of Ortiz-Prieto, 

, superseded.]

CHARGE:
  Order : Act of 1952—Section 241 ( a) (2 ) [8 U.S.C. 1251 ( a) ( 2) ]—Visitor,
                         remained longer.
ON BEHALF OF RESPONDENT:                          ON BEHALF OF SERVICE:
  Donald L. Ungar, Esquire                          R. A. Vielhaber
 517 Washington Street                              Appellate Trial Attorney
 San Francisco, California 94111
  (Brief submitted)


  In our decision of February 6, 1970, we sustained the respondent's appeal, withdrew the order of the special inquiry officer, and
granted respondent adjustment of status under section 245 of the
Immigration and Nationality Act. At that time we stated that an
opinion in greater detail would be forthcoming in the near future.
In sustaining the respondent's appeal we have, in effect, exercised
discretionary power contrary to the manner in which the special
inquiry officer exercised it. In so doing, we did not conclude that
the special inquiry officer was either arbitrary or capricious in
his action or that he abused his discretion in any manner.
   The special inquiry officer after finding the respondent to be eligible for the relief, nevertheless, concluded that such should not
Je granted as a matter of discretion. He based his denial on the
:riteria set forth in Matter of Ortiz-Prieto, 

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                                            Interim Decision #2027
  (BTA, 1965). We there stated that the extraordinary relief described in section 245 can only be granted in meritorious cases.
 Having found no outstanding equities in that case, we dismissed
 the appeal from the special inquiry officer's denial of the relief as
 a matter of discretion.
    We are now of the opinion that the language set forth in
 Matter of Ortiz-Prieto, supra, should be clarified and modified
 because it is too broad in its impact and probably more demanding than necessary. Accordingly, the language of the instant decision will supersede that contained in Ortiz-Prieto.
    The respondent is now over 27 years of age. He is single and
 was admitted to the United States on March 25, 1968, as a visitor
 for a period of time to expire on April 26, 1968. On April 25,
 1968, he filed an application for staus as a temporary worker or
 trainee. That application was denied on October 4, 1968, and he
 was thereafter granted voluntary departure to expire on November 28, 1968. He remained beyond that date and is concededly deportable on the charge contained in the order to show cause.
    The special inquiry officer in considering the respondent's application for adjustment of status under section 245 was aware
that the respondent is a specialty cook in Japanese cuisine and
had been accorded a labor certification for such employment. No
finding was made by the special inquiry officer that the respondent was other than a bona fide visitor when he first arrived in the
United States. Apparently the special inquiry officer considered
the respondent's taking of employment before his trainee status
had been acted upon as an adverse factor. He then found that the
respondent's case presented no unusual equities and based his denial of the application on the ruling contained in Ortiz-P••eto.
    Section 245 of the Immigration and Nationality Act reposes
with the Attorney General and his delegates the discretionary
power to grant adjustment of status. Therefore it follows that
mere eligibility for that privilege will not automatically result in
a grant of the application.
   The record in the instant case presents no adverse factors affecting respondent's application. He is a young man, in good
health and of good moral character. his employment is such that
a labor certification has been issued. The employment could be of
potential benefit to this country. The respondent has no dependents.
   It is difficult and probably inadvisable to set up restrictive
guide lines for the exercise of discretion. Problems which may
arise in applications for adjustment must of necessity be resolved

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Interim Decision #2027

on an individual basis. Where adverse factors are present in a
given application, it may be necessary for the applicant to offset
these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of
residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion.
   Our decision to sustain the respondent's appeal was based upon
the foregoing considerations. We do not deem it necessary for the
respondent to establish, in light of the circumstances surrounding
his case, any outstanding equities.




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