YEUNG

Interim Decision #2619




                               MATTER OF YEUNG

                           In Deportation Proceedings

                                    A-16031948
                      Decided by Board October 12, 1977
When an alien, in deportation proceedings, submits an application for preference status
 under section 203(a)(7) of the Immigration and Nationality Act in conjunction with an
 application for adjustment of status under section 245 of the Act, the decision as to
 whether the alien should be granted preference status is made by the District Director,
 and the immigration judge acted improperly in denying the section 245 application
 before the alien had received written notification of the denial of his petition.
CHARGE:

  Order. Act of 1952—Section 241(a)(2) t8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained
                       longer
ON BEHALF OF RESPONDENT:                             ON BEHALF OF SERVICE:
 Jules E. Coven, Esquire                              Paul C. Vincent
 Lebenkott & Coven                                     Appellate Trial Attorney
 One East 42nd Street
 New York, New York 10017


BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members


   In a decision dated November 15, 1976, an immigration judge found
the respondent deportable under section 241(a)(2) of the Immigration
and Nationality Act as a nonimmigrant hi transit who had remained
longer than authorized, ordered him deported, but granted him the
privilege of voluntary departure in lieu of deportation. He also denied
the respondent's application for adjustment of status pursuant to section 245 of the Act. The respondent has appealed from that denial. The
record will be rernanded.
    The respondent is a 29-year-old native and citizen of China who last
entered the United States on or about January 31, 1975, as an alien in
transit with a visa authorized to remain in the United States until March
 1, 1975. He remained beyond that time. At the deportation hearing the
respondent admitted that the allegations of fact in the Order to Show
Cause were true, but denied that he was deportable as charged. The
innnigration judge however found that, based upon his admission of the
truth of the allegations of fact, his deportability as charged had been

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established by clear, convincing, and unequivocal evidence. We agree.
The hearing was then continued so that the respondent could submit an
application for adjustment of status pursuant to section 245 of the Act as
a refugee under section 203(a)(7).
   In order to establish eligibility for adjustment; of status under section
245 of the Act, a respondent must establish both that he is admissible to
the United States and that there is an immigrant visa immediately
available to him. Although the Department of State Visa Availability
Bulletin indicated that there were seventh-preference visas available at
the time of the reconvened hearing, the respondent's petition for refugee status had not been approved and the Government trial attorney
stated that the District Director had denied the petition and the decision
was being mailed to the respondent. The immigration judge told the
respondent that he -would proceed with the hearing on the application
for adjustment of status; however, he also stated that he would reopen
the proceedings on his own motion if the application was later approved
by the District Director.
   On the Notice of Appeal, Form I-290A, the respondent gave several
issues upon which he was basing his appeal. However, at oral argument
before this Bo'ard he stated that he was appealing only from the fact that
the immigration judge denied his application for adjustment of status
before he had received written notification of the denial of his petition
for seventh-preference status. The respondent stated that he believed
that a petition for preference status under section 203(a)(7) of the Act
could not be considered unless an application for adjustment of status
was pending and that, therefore, the immigration judge should not have
denied the section 245 application until the respondent had received
written notification of the denial of his petition for the seventh-preference status. The respondent stated at oral argument that he had still not
received a copy of that decision.
   The Code of Federal Regulations specifies that an applicant for adjustment of status under section 245 of the Act who claims to be entitled
to preference status under section 203(a)(7) of the Act should execute
and attach to his application for adjustment of status a Form I-590A,
Application for Classification as a Refugee under the Proviso to section
203(a)(7), Immigration and Nationality Act. See 8 C.F.R. 245.4. The
determination as to whether an alien is entitled to this preference is
made by the District Director. The Immigration and Naturalization
Service Operations Instructions provide for the processing of such application, and under these instructions if the District Director finds that
an alien should not be granted preference status under section 203(a)(7)
of the Act, he is to notify the alien applicant on a Form I-290C of this
finding and certify the case to the Regional Commissioner (Operations
Instructions 245.8(b)(5)).
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   The respondent, in the present case, claims never to have been
notified that his application for preference status under section 203(a)(7)
was denied by the District Director and the record contains no evidence
of such a denial or that the case was certified to the Regional Commissioner as required. Since there is nothing in the record which indicates
that the respondent was informed that his application for preference
status under section 203(a)(7) of the Act was denied or that other
required procedures were followed, we shall remand the case to the
immigration judge so that he may hold the case in abeyance until such
time as all necessary procedures have been completed, and can then
hold a new hearing.
   ORDER: The record is remanded to the immigration judge for
further proceedings consistent with this decision.




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