RODRIGUEZ

Interim Decision #2535




                             MATTER OF RODRIGUEZ

                            In Deportation Proceedings
                                       A-14559693

                        Decided by Board October 4, 1976
In order for a suspension applicant, who is a native of a contiguous country, to establish
   pursuant to section 244(f) of the Immigration and Nationality Act, as amended, that he
   is ineligible to obtain an immigrant visa, he must show that his best efforts would not
   result in his being able to obtain a visa. Where, as in the instant ease, respondent is
   ineligible for a visa under section 212(a)(17) of the Act and he has not applied and
   refuses to apply for relief (permission to reapply for admission after deportation) -which,
  if granted, would remove the ground of ineligibility, he has not satisfied the requirement of section 244(f) by establishing ineligibility to obtain an immigiant visa; xecordingly, the denial of his suspension application by the immigration judge was proper.
CHARGE:

  Order: Act of 1952—Section 241(a)(1) (8 1J.S.C. 1251(a)(1)}—Excludable at time of
                            entry

ON BEHALF OF RESPONDENT: Emanuel Braude, Esquire
                                     215 West 5th Street
                                     Los Angeles, California 90013


   On October 1 17, 1975, the immigration judge entered an order in which
he found the respondent deportable, denied the latter's application for
suspension of deportation, and granted him the privilege of voluntary
departure. The appeal will be dismissed.
  The record relates to a married male alien, 37 years of age, a native
and citizen of Mexico, who entered the United States without inspection
during 1968. He conceded deportability. Accordingly, the finding of
deportability rests upon evidence which is clear, convincing and unequivocal.
  The relief of suspension of deportation is not available to the respondent, who is a native of a country contiguous to the United States,
unless he establishes that he is ineligible to obtain an immigrant -visa,
section 244(f)(3) of the Immigration and Nationality Act. Inasmuch as
the respondent is the father of a United States citizen, he does not
require a labor certification and therefore is not ineligible for a visa
under section 212(a)(14).

                                             42
                                                Interim Decision #2535
   The respondent claims that he is ineligible for a visa pursuant to
section 212(a)(17) as an alien who has been deported and who has not
received permission to reapply. The respondent has been previously
deported, and he has never received permission to reapply for admission. He concedes, however, that he has never made an application for
that permission. Counsel argues that the respondent, who without
permission appears to be eligible for suspension, cannot be forced to
apply for permission and thereby be forced to lose his eligibility for
suspension. Counsel characterizes the suggestion that the respondent
must -do so as requiring the respondent to "act as his own executioner."
We reject counsel's argument_ An applicant for suspension who is a
native of a contiguous country must, by the terms of section 244(f),
establish that he is ineligible to obtain an immigrant visa.
   In order to establish ineligibility for an immigrant visa, the respondent must show that his best efforts would not result in his being able to
obtain a visa. That has not been shown in this case, for the respondent
refuses to apply for relief which is available and which, if granted, would
remove the claimed ground of ineligibility. Were the respondent to
obtain permission to reapply, he could utilize the normal consular channels to achieve lawful permanent resident status and he would not need
the relief of suspension of deportation. The relief of suspension of
deportation was not designed for such a person. The decision of the
immigration judge to deny the application was correct. He considerately
provided that, should an advance application for permission to reapply
be made and denied, he would, upon his own motion, reconsider his
denial of the application for suspension.
   ORDER: The appeal is dismissed.
   FURTHER ORDER: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily
within 90 days from the date of this order or any extension beyond that
time as may be granted by the District Director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.




                                    43