Interim Decision #2103
MATTER OF PEREZ-LOPEZ
In Deportation Proceedings
A-14859483
Decided by Board October 29, 1971
Respondent, a native and citizen of the Dominican Republic, who entered the
United States for permanent residence on January 25, 1967, with a waiver
of the labor certification requirement as the unmarried child of a lawful
permanent resident, but who had married prior to entry, is deportable as
one excludable at entry for lack of a labor certification. His contention,
raised during deportation proceedings, that as a qualified electrician he
would have been exempt at entry (Precertification List—Schedule C) from
the labor certification requirement, is rejected since the provisions of
Schedule C did not become effective until February 1, 1967. Further, even
if Schedule C had been in effect at entry, he would have been required to
making the necessary application for a determination of eligibility, and he
made no such application then or later.
CHARGE :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable at entry—no labor certification.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Louis A. Lebron, Esquire Irving A. Appleman
1670 East 174th Street Appellate Trial Attorney
Bronx, New York 10472
The special inquiry officer found the respondent deportable as
:harged and, in his opinion dated April 9, 1970, granted him the
)rivilege of voluntary departure. Respondent appeals from that
,rder. The appeal will be dismissed.
The record relates to a married male, a native and citizen of
he Dominican Republic who was born May 23, 1946. The repondent was issued an immigrant visa as a special immigrant,
he unmarried child of a native of the Western Hemisphere who
a lawful permanent resident, on December 15, 1966. The re-.
pondent was 20 years old and unmarried at the time. The repondent was married to a citizen of the Dominican Republic on
anuary 19, 1967. On January 25, 1967 the respondent entered
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Interim Decision #2103
the United States as an immigrant, using the visa referred to
above.
The special inquiry officer noted that the respondent was-not an
unmarried child of a lawful permanent resident when he entered
the United States. Therefore, the special inquiry officer concluded that the respondent was not entitled to that visa and was
not exempt from the requirement that he present a labor certification. The special inquiry officer accordingly found the respondent deportable for lack of a labor certification.
The respondent's representative, during oral argument, raised
for the first time the contention that the respondent, allegedly an
electrician, would have been exempt from the labor certification
requirement when he entered, because he could have qualified for
the Precertification List (Schedule C). He claimed that the respondent was not fully questioned at time of entry, and that had
he been given the opportunity, he could have shown himself qualified under Schedule C and therefore exempt from the labor certification requirement. We are aware that the respondent's visa
application does indeed list his occupation as that of an electrician. However, the record contains nothing to indicate the respondent's qualifications, training or experience as an electrician.
As we noted above, the respondent was only 20 years old at the
time of his entry. There is no information in the record as the respondent's actual employment since entering the United States.
All that the file contains is a copy of a job offer from a footwear
company for hourly employment at no more than $2.00 an hour.
The respondent could not have benefited from the exemption
from labor certification provided by Schedule C at the time he entered the United States on January 25, 1967. The provisions of
Schedule C were added by
32 FR 867
of January 25, 1967, and
went into effect only on February 1, 1967. Even if the provisions of
Schedule C had been in effect at the time of his entry, the respondent would not automatically have received the benefit of
Schedule C. That is, he would have been required to make the
necessary application for a determination of whether (1) he qualified as an electrician under Schedule C and (2) whether his intended area of residence was within the geographical area covered by the exemption. See the version of 8 CFR 204.2(g) in
effect at the time. He made no such application, either then or
later. Consequently, we find this argument without effect and we
agree with the special inquiry officer that the record contains evidence that is clear, convincing and unequivocal that the respondent is deportable as charged.
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Therefore the appeal will be dismissed and the following order
will be entered.
ORDER: The appeal is dismissed.
It is further ordered that the outstanding order of deportation
be withdrawn and that the respondent be permitted to depart
from the United States voluntarily within 30 days from the date
of this order or any extension beyond that time as may be
granted by the District Director; and that, in the event of failure
so to depart, the respondent shall be deported as provided in the
special inquiry officer's order.
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