Interim Decision #2640
MATTER OF RAFEPOUR
In Deportation Proceedings
A-21017491
Decided by Board March 13, 1978
Despite respondent's conviction under 8 U.S.C. 1306(c) (filing application for alien registration containing statements known by him to be false) a deportable offense under
section 241(a)(5), he is not excludable and, therefore, not ineligible for adjustment of
status. Matter of R—G--, 8 I. & N. Dec. 128 (BIA 1958) reaffirmed. See also Matter of
Sanchez, Interim Decision 2617 (BIA 1977).
CHARGE:
Orden Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))--Noninunigrant student—
remained longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Donald L.. Ungar, Esquire Sabri Randall. Acting
Phelan, Simmons & Ungar Appellate Trial
517 Washington Street Attorney
San Francisco, California 94111
Brian B. Simpson
Trial Attorney
Milhollan, Chairman; Wilson, Maniatis, and Appleman , Board Members. Board
Member Maguire dissenting.
The Service appeals from the decision of an immigration judge, dated
September 24, 1976, in which he granted the respondent's application
for adjustment of status. The appeal will be dismissed.
The record relates to a 26-year-old native and citizen of Iran who
entered the United States as a nonimmigrant student on January 2,
1970, authorized to remain until June 8, 1973. On April 14, 1975, the
respondent was found deportable as charged, but he was granted the
privilege of voluntary departure until October 14, 1975. No append
followed from that decision, but the respondent did move to reopen the
proceedings in order to apply for permanent resident status. On Marcli
11), 1976, the immigration judge granted the motion to reopen and on
September 24, 1976, he granted the respondent's application for adjustment of status. The only issue before us on appeal is the respondent's
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eligibility for adjustment of status under section 245 of the Immigration
and Nationality Act.
The Service argues that the respondent is ineligible for section 245
relief because he was convicted on March 25, 1975, of a violation of 8
U.S.C. 1306(c) (filing an application for an alien registration with the
Service containing statements known by him to be false) and, therefore,
he would immediately become deportable under section 241(a)(5) of the
Act if granted permanent resident status. The immigration judge, however, found the respondent eligible for adjustment of status because in
accordance with Matter of R — G— , 8 I. & N. Dec. 128 (BIA 1958), an
alien would not be deportable under section 241(a)(5) following his
lawful admission for permanent resident.
We have recently reaffirmed Matter of R—(—, supra, in Matter of
Sanchez, Interim Decision 2617 MIA 1977). In Matter of Sanchez, supra,
we held that an alien previously deported under any section of the Act is
not forever barred from entering the United States, if the proper waivers
are obtained, simply because of the conduct which would have rendered
him deportable under section 241(a)(5) prior to his deportation. Although
the respondent in the case before us was never previously deported, his
situation even more closely resembles that in/trotter of R — G— , supra.
Matter of R — G--- was an exclusion proceeding-, wherein the applicant
was ordered admitted despite an earlier conviction for violation of one of
the statutes listed in section 241(a)(&) as giving rise to a ground of
deportability. In the respondent's case before us, the acts giving rise to
the conviction for deportable offense under section 241(a)(5) were committed before he either applied for permanent resident status or was
found deportable on other grounds.
In view of the fact that an alien applying for adjustment of status is
assimilated to an alien applying for adjustment of status for adjustment
of status is assimiliated to an alien seeking admission-into the United
States, at least insofar as he must not "otherwise be excludable," we see
no reason for applying a different rule from that described in Matter of
R –G– , supra, and reaffirmed in Matter of Sanchez, supra_
The respondent married a United States citizen on April 10, 1975, and
her visa petition in his behalf was approved on July 7, 1975. Based upon
his conclusion that the marriage was bona fide, and that the respondent was a person of good moral character, the immigration judge
granted him permanent resident status in the exercise of discretion.
Inasmuch as the immigration judge is given primary responsibility for
judging the credibility of witnesses,' we will not over turn his determination. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
See Matter of Teng, interim DecIsiun 2452 (DIA 1975); Matter of T—, 7 L & N. Dee.
417 (BIA 1957).
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interim Decision /it2o4u
Mary P. Maguire, Board Member, Concurring in Part and Dissenting in Part
While I agree with the majority insofar as they have concluded that
the respondent is statutorily eligible for adjustment of status pursuant
to section 245 of the Act under the rationale of Matter of Sanchez,
Interim Decision 2617 (BIA 1977), I would sustain the Service appeal
with respect to the immigration judge's favorable exercise of discretion in
granting section 245 relief.
The respondent entered the United States on January 2, 1970, as a
nonimmigrant student, authorized to remain until June 8, 1973. On
March 26, 1974, after his authorized stay had expired, he married a
United States citizen who filed a visa petition on May 24, 1974, to classify
him as an immediate relative. On that same date the respondent filed an
application to adjust his status to that of a lawful permanent resident.
On August 12, 1974, the respondent and his alleged spouse were interviewed under oath by an immigration officer in correction with both the
visa petition filed on behalf of the respondent and the application for
adjustment of status filed by the respondent. During that interview the
respondent testified that he resided with his alleged spouse at the
address shown on the visa petition (Ex. 2).
Subsequent investigation by the Service determined that the respondent had never resided with his alleged citizen spouse at any address
and that he had, in fact, paid her five hundred dollars ($500) to marry
him so that he could adjust his status to that of a lawfully admitted
permanent resident alien on the basis of his relationship to a United
States citizen. As a result of the false statements made in conjunction
with the application for adjustment of status, the respondent was convicted, upon his plea of guilty, on March 25, 1975, in the United States
District Court for the Northern. District of California of violating 8
U.S.C. 1306(c), was placed on probation for a period of six (6) months
and fined one hundred dollars ($1OO). The visa petition and the application for adjustmennt of status were subsequently withdrawn.
Deportation proceedings were instituted against the respondent on
March 7, 1975, by the issuance of an Order to Show Cause. In a decision
dated Apri114, 1975, the immigration judge found the respondent deportable as charged, which the respondent conceded, and granted him the
Privilege of voluntary departure on or before October 14, 1975. The
is emigration judge granted the discretionary relief of voluntary departure on the basis of the respondent's marriage to another United States
c=itizen on April 10, 1975. The respondent had secured a Nevada divorce
om his first wife on April 7, 1975. No appeal was taken from the
iltnmigration judge's order.
On July 7, 1975, the Service approved a visa petition filed on respondent's behalf by his present wife and on July 14, 1976, the respondent
submitted an application for adjustment of status. In an order dated
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Interim Decision #2640
March 10, 1976, the immigration judge reopened the deportation proceedings to permit the respondent to pursue his application for adjustment of status. After further hearings on August 18, 1976, and on
September 24, 1976, the immigration judge entered an order on the
latter date granting the respondent's application for adjustment of
status. The Service appealed from the decision of the immigration judge
and contended that : (1) the respondent is not eligible for an immigrant
visa within the meaning of section 245 because he would be deportable
upon admission under section 241(a)(5), 8 U.S.C. 1251(a)(5): and (2) the
immigration judge erred in granting discretionary relief under section
245. I concur with the majority insofar as they have concluded that the
respondent is eligible for an immigrant visa under the rationale of
Matter of Sanchez, supra.
However, I would sustain the Service appeal from the immigration
judge's favorable exercise of discretion with respect to the respondent's
application for adjustment of status. The respondent was admitted to
the United States as a student on January 2, 1970, and his authorized
stay expired on June 8, 1973. He concededly entered into a "sham"
marriage with a United States citizen in order to obtain an immigration
benefit. He made false statements to a Service officer with respect to
the bona fides of his marriage in an interview of his application for
adjustment of status. After his conviction and after the institution of
deportation proceedings agaiiml, him, the respondent secured a divorce
and married another United States citizen.
As pointed out by the Attorney General in Matter of Bias, Interim
Decision 2485 (BIA 1974; A.G. 1976), adjustment of status is not necessarily available on a simple showing of eligibility. The extraordinary
discretionary relief provided in section 245 of the Act can only be
granted in meritorious cases, and the burden is always upon the alien to
establish that his application for that relief merits favorable consideration. Dirie v. INS, 400 F.2d 658 (9 Cir. 1968), cert. denied,
394 U.S.
1015 (1969); Santos v. INS, 375 F.:2c1 262 (9 Cir. 1967); Matter of
Ortiz Prieto,
11 I. & N. Dec. 817 (BIA 1965).
-
A showing of eligibility for adjustment of status which carries with it
its own strong equities, such as immediate relative status, can have a
positive influence on the exercise of discretion and, in the absence of
adverse circumstances, should prevail. Matter of Blas, supra; Matter of
Anti, 13 I. & N. Dec. 494 (BIA 1970).
Thus, although an application for adjustment of status based on
immediate relative status is initially appealing, there may be other
factors present which undercut the quality of the case presented. In
'flatter of Bias, supra, the Attorney General found that, despite the fact
or the respondent's apparently bona Me marriage to a United States
citizen, the fact that he had made misleading responses in seeking his
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Interim Decision #2640
initial visitor's visa warranted denial of the respondent's section 245
application.
Likewise, this Board and the courts have held that an alien who is
admitted to the United States as a nonimmigrant but who is found to
have had, at the time of entry, a preconceived intent to remain in the
United States permanently, does not merit the favorable exercise of
discretion, despite familial relationships with United States citizens or
lawful permanent residents. See Soo Yuen v. INS, 456 F.2d 1107 (9 Cir.
1.972); Lee v. INS,
446 F.2d 881 (9 Cir. 1971); Ameeriar v. INS,
438 F.2d
1028 (3 Cir.), cert. denied,
404 U.S. 801(1971); Chen v. Foley,
385 F.2d
929 (6 Cir. 1967), cert. denied,
393 U.S. 838 (1968); Matter of FuentesBlanco, 13 I. & N . Dee. 128 (BIA 1968).
In my opinion, the respondent has not established that he merits the
extraordinary relief of adjustment of status. He had admitted entering
into a sham marriage to circumvent the immigration laws of the United
States. He was convicted of violating the immigration laws. His present
marriage was entered into at a time when he was already the subject of
deportation proceedings. I do not think that his present marriage to a
United States citizen is sufficient equity to outweigh the very serious
adverse factors In this case. I would, therefore, reverse the decision 01'
the immigration judge and deny the respondent's application for adjustment of status.
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