AJAELO

                                                           Interim Decision #2317




                               MATTER OF AJAELO

                           In Deportation Proceedings
                                      A-17659400
                                      A-20029121
                       Decided by Board August 16, 1974
The Department —of State's determination that an exchange visitor under section
  101(a)(15)(J) of the Immigration and Nationality Act was subject to the two year foreign
  residence requirement of section 212(e) of the Act, because he had received governmental financial aid, is not conclusive in determining the issue of such financial aid. As
  part of the immigration judge's consideration of an application for adjustment of status
  under section 245 of the Act he must make an independent determination on the issue of
  governmental financing.
CHARGE:
Order: Act of 1952—Section 241(a)(2)(8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained
                     longer (both respondents).
ON BEHALF OF RESPONDENTS:                              ON BEHALF OF SERVICE:
  Donald L. Ungar, Esquire                               B. J. Hornbach, Esquire
  517 Washington Street        ..                        Trial Attorney
  San Francisco, California 94111


  This is an appeal from an order of an immigration judge finding the
respondents deportable and granting them voluntary departure. The
record will be remanded to the immigration judge for further proceedings.
   The respondents are husband and wife, natives and citizens of
Nigeria, who were admitted to the United States as nonimmigrant
visitors on November 15, 1968 and January 29, 1971, respectively. On
April 28, 1969 the male respondent'S- status was changed to that of a
student. On March 22, 1972 both respondents' applications for adjustment of status under section 245 of the Immigration and Nationality Act
were denied and they were granted the privilege of departing voluntarily by April 22, 1972. They failed to depart and deportation proceedings
were instituted. On February 6, 1974 the immigration judge found them
to be deportable as charged and granted them voluntary departure.
  The record indicated' that prior to his most recent entry , the male        -


respondent in 1966 had participated in an exchange visitor program
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under section 101(a)(15)(J) of the Act (Exh. 4). As an exchange visitor,
he became subject to the foreign residence requirement of section 212(e)
of the Act, as amended, and unless he could show that he qualified for
exemption from it, he was precluded from applying for permanent
residence until it was satisfied. The District Director concluded that the
male respondent was, in fact, subject to this requirement, and, since he
had not fulfilled it, both he and his wife were ineligible to receive
immigrant visas (Exh. 2). The record reflects that the male respondent's
application for a waiver of the foreign residence requirement of
amended section 212(e) was denied by the Department of State (Tr. p.
39). However, it is counsel's position that the male respondent does not
require a waiver since he is not subject to the foreign residence requirement of section 2I2(e) by the very terms of that provision.
  As amended in 1970, section 212(e) provides that no person admitted
under section 101(a)(15)(J), or acquiring such status after admission,
shall be eligfli e to apply for permanent residence if his participation in
the exchange visitor program "was financed in whole or part, directly or
indirectly, by an agency of the Government of the United States or by
the government of the country of his nationality or his last residence.. .
until it is established that such person has resided and been physically
present in the country of his nationality or his last residence for an
aggregate of at least two years following departure from the United
States _ _ _ "
   At the hearing in 1972 the male respondent maintained that he had
not received any funds through the exchange visitor program in which
he participated (Tr. pp. 11-17). The immigration judge noted that this
program, designated "P-3-2502, Afro-American Institute," appears on
a list compilee. by the Department of State, Bureau of Educational and
Cultural Affairs, which indicates that it has determined such program to
have been governmentally financed within the scope of amended section
212(e). The immigration judge found this to be conclusive evidence that
the male respondent was not exempt from the foreign residence requirement. When the hearing was resumed in 1974, the respondent,
through present counsel, reasserted his claim and offered to present
evidence in support of it (Tr. pp. 39-40). The immigration judge declined
to receive such evidence on the ground that he had no jurisdiction to
review the State Department's determination in this regard, and was, in
effect, bound by it (Tr. p. 40). Counsel contends, and we agree, that the
immigration judge was in error.
   We find tha-; the question of whether the male respondent is subject to
the foreign residence requirements of amended section 212(e) is a
proper one for the immigration judge to decide, apart from the views of
the State Department. Such a determination bears on the male respondent's eligibility to receive an immigrant visa, and when it is presented

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in connection with an application for adjustment of status under section
245 of the Act, it is clearly within the jurisdiction of the immigration
judge, as are all questions of admissibility. While an alien's participation
in a program which the State Department has determined to be governmentally financed may create a presumption that he, in fact, received funds thereby, this presumption may be rebutted by competent
evidence to the contrary. Cf. Matter of Qum, 14 L & N. Dec. S40 (BIA
1973). The immigration judge's refusal to consider an offer of such
evidence by the respondents in this case constituted prejudicial error
and warrants a remand so that the record may be completed. The
immigration judge should then make a new determination regarding the
respondents' eligibility for section 245 relief. Accordingly, the following
order will be entered.
   ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion.




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