Interim Decision #2282
MATTER OF GAGLIOTI
In Section 245 Proceedings
A-18597420
Decided by Regional Commissioner May 1, .1974
Applicant, a deaf mute, is not for that reason alone considered to be physically
incapable of reading so as to come within the literacy requirement exemption
of section 212(a)(25) of the Immigration and Nationality Act. Since he is
unable to read any language and is not within any of the other classes of
aliens exempt under the Act from the literacy requirement, he is inadmissible
under section 212(a)(25) of the Act, and, therefore, is statutorily ineligible for
adjustment of status under section 245 of the Act, as amended.
This matter is before the Regional Commissioner on certification
by the District Director who denied the application for adjustment
of status under section 245 of the Immigration and Nationality
Act, as amended.
The applicant is a 59-year-old single male native and citizen of
Italy. He last entered the United States as a nonimmigrant visitor
for pleasure April 20, 1968 and received extension of stay to June
30, 1970. Private bills to give the applicant permanent residence
status were introduced in the 91st and 92nd Congresses, but failed
passage.
The father of the applicant became a naturalized citizen of the
United States in 1937 but the applicant was then 22 years of age,
has never been lawfully admitted to the United States for permanent residence and therefore did not derive United States citizenship. His mother, a native and citizen of Italy, never resided in the
United States. Both parents are now deceased. He has no close
relatives in Italy. He has two sisters living in the United States,
one a citizen of the United States, the other a permanent resident.
A petition to accord the applicant preference under section
203(aX5) of the Immigration and Nationality Act as the brother of
a United States citizen has been approved and a visa number is
immediately available to him.
The applicant is a deaf mute and is afflicted with diabetes. He is
unemployed and it is unlikely that he will ever engage in gainful
employment. He receives a monthly Social Security check of
$10590 as the disabled son of a United States citizen. He receives
room and board at the homes of his sisters. From evidence
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Interim Decision #2282
submitted by his two sisters and by a nephew, we believe that the
applicant has affirmatively established that he will not have to
earn a living (section 212(a)(7)) and that he is not likely to become a
public charge (section 212(a)(15) of the Immigration and Nationality Act)..
The sole remaining issue to be resolved then is whether the
applicant is excludable under section 212(a)(25) of the Act which
states that:
Except as otherwise provided in this Act, the following classes of aliens shall
be ineligible to receive visas and shall be excluded from admission into the
United States:
Aliens (other than aliens who have been lawfully admitted for permanent
residence and who are returning from a temporary visit abroad) over
sixteen years of age, physicially capable of reading, who cannot read and
understand some language or dialect.
The record shows that the applicant cannot read any language.
To be exempt from the excluding provisions of section 212(aX25),
supra, the alien must be included in one of the following classes:
L Any alien sixteen years of age and under (section 212(a)(25) of the Act).
The applicant is 59.
2. Any alien physically incapable of reading (section 212(aX25) of the Act).
There is no showing that the applicant is physically incapable of reading. A
deaf mute is not considered to be physically incapable of reading (U.S. ex
Engel v. Tod,
).
3. Any alien lawfully admitted for permanent residence who is returning from
a temporary visit abroad (section 212(a)(25) of the Act). The applicant has
never been lawfully admitted for permanent residence.
4. Any alien who is the parent, grandparent, spouse, daughter or son of an
admissible alien, or of an alien lawfully admitted for permanent residence, or
of a citizen of the United States, if the illiterate alien is accompanying or
coming to join such relative in the United States (section 212(b)(1) of the Act).
The applicant is the brother of a United States citizen and of an alien lawfully
admitted for permanent residence but brothers and sisters are not included in
this exemption.
5. Any alien who is seeking to enter the United States to escape religious
persecution in the country of his last permanent residence (section 212(b)(2) of
the Act). No such claim has been advanced by the applicant.
6. Any alien seeking entry as a nonimmigrant (section 212(dX1) of the Act).
Although the applicant entered as a nonimmigrant visitor for pleasure he
now seeks immigrant status.
We are aware of the sympathetic features of the case and of the
dilemma faced by the applicant's sisters in arranging for his care,
but our decision is not one of discretion. The applicant is statutorily ineligible for admission as an immigrant under section
212(aX25), supra, and therefore ineligible for adjustment of status
under section 245 of the Immigration and Nationality Act. The
decision of the District Director will be affirmed.
It is ordered that the denial of the application be and the same is
hereby affirmed.
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