HUEY

                                               Interim Decision #1903




                            MAI real, OF H UEY

                      In Deportation Proceedings
                               A-10825941
           •    Decided by Board September 16, 1968
The denial by Congress of suspension of deportation, standing alone, is not a
  bar to the grant of adjustment of status under section 245 of the Immigration and Nationality Act, as amended. [Matter of Lee, 

, distinguished.]

CHARGE :
  Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2))—Visitorremained longer.
ON BEHALF OF RESPONDENT:                       ON BEHALF OF SERVICE:
  Joseph S. Hertogs, Esquire                     Irving A. Appleman
  580 Washington Street                         Appellate Trial Attorney
  San Francisco, California 94111

  This case is before us on certification from the special inquiry
officer for review and final decision. He denied the respondent's
application for adjustment of status and ordered only that he be
deported to the Republic of China on Formosa. The respondent's
application for adjustment of status will be granted.
   The respondent is a native and citizen of China, age 33, who
has resided in the United States since his arrival at San Francisco, California on or about January 28, 1952. He was admitted
as a nonimmigrant visitor for the purpose of proceeding with an
action then pending in a United States District Court. His action
for a declaratory judgment of United States citizenship was dismissed on April 30, 1962. He has remained in this country without authority since that date.
   The special inquiry officer, by order dated October 28, 1963,
found that the respondent's deportation, which could only be effected to the Far East, would result in extreme hardship to him.
Further finding the respondent eligible for such relief, he granted
his application for suspension of deportation. However, the Con-
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Interim Decision #1903
gress did not approve suspension of deportation in this case and
the hearing was reopened. The respondent, a laundry worker
since at least 1963, submitted an application for status as a permanent resident under the provisions of section 245. Counsel declined to apply for voluntary departure on behalf of the respondent as an alternative form of relief.
  The special inquiry officer, by order dated May 7, 1968, noted
that the respondent's father had been naturalized subsequent to
his earlier decision and had then filed a petition on behalf of the
respondent. The latter was accorded a first preference under the
quota for China. The special inquiry officer concluded, however,
in view of the decision in Matter of Lee, 

, to
deny the respondent's application for permanent resident status
as a matter of discretion since Congress had disapproved suspension of deportation in this case. In the absence of an application
for voluntary departure, he ordered only that the respondent be
 deported on the charge contained in the order to show cause. Further finding that a question of policy is involved, the special inquiry officer certified this case to the Board for final decision.
 Neither party filed a brief in this matter.
   At oral argument, counsel pointed out the respondent testified
 that until the time his father actually appeared and made his confession statement to the Service in 1962, "He had no reason to believe his father had not been born in the United States." Further,
the respondent has never been to Taiwan and has only been in
Hong Kong for a maximum period of about six months while
waiting to proceed to this country. The visa petition filed in behalf of the respondent classifies the latter as in the first preference category, now that his father acquired citizenship here in
1967. Counsel contended that with the change in conditions since
the Congress acted on the respondent's application for suspension
of deportation, he.should now be granted adjustment of status as
a matter of discretion.
   In reply, the Service stated that as of 1965, Congress did not
want to grant suspension of deportation to the respondent and
the only thing that has happened in the interim is "visa availability." It was contended that visa availability, standing alone, is
not sufficient to justify the grant of permanent resident status in
this case. Counsel for the respondent concluded that there is a
considerable difference in standards for qualification of an applicant for suspension of deportation as compared with an applicant
for adjustment of status under section 245 of the Act.
   We have reviewed the entire proceedings in this matter and

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conclude that on the record as a whole, there is sufficient affirmative evidence that the respondent is entitled to the relief sought
herein. We find the facts in Matter of Lee, .supra, relied upon by
the special inquiry officer, to be clearly distinguishable as the respondent therein sought suspension of deportation. It is interesting to note that five years ago the special inquiry officer, in reliance upon the respondent's residence in this country during his
 entire adulthood and his father's status as a lawful resident of
 the United States, granted the respondent's application for suspension of deportation.
   We do not interpret the denial by Congress of the application
for suspension of deportation,' standing alone, as a reason that
 section 245 relief should be denied, as urged by the Service. Certainly the respondent has much more than visa availability in his
favor. He has resided in this country for almost 17 years, more
 than one half of his entire lifetime. In addition, his father is now
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 a United States citizen and the respondent is classified as being in
 the first preference category. The respondent has never been to
 Tziiwan and the special inquiry officer found even five years ago
 that the respondent's deportation to the Far East would cause
 him extreme hardship. In the interim, he has become even more
 accustomed to our American way of life. The requirements necessary for an alien to warrant section 245 relief have generally
 been acknowledged to be less exacting than those necessary to
 merit suspension of deportation. The respondent herein has been
found to be of good moral character. The respondent's entry was
made in good faith and we have repeatedly held this to be an important factor in justifying a grant of adjustment of status, cf.
Matter of Garcia Castillo, 10 I_ & N. Dec. 516, '790. Accordingly.
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we find that the circumstances warrant a favorable exercise of
discretion. The respondent's application for adjustment of status
under section 245 of the Act should be granted and these proceedings terminated.
   ORDER: It is ordered that the outstanding order of deportation be withdrawn and the respondent's application for adjustment of status be granted.




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