CAVAZOS

                                                          Interim Decision #2750




                              MATTER OF CAVAZOS
                          In Deportation Proceedings
                                    A-22365153
                     Decided by Board January 8, 1080

(1) While an Immigration and Naturalization Service Operations Instruction binds
  neither an immigration judge nor the Board, the Service policy manifest therein may
  appropriately be considered by the immigration judge and the Board in exercising
  discretion.
(2) Notwithstanding evidence establishing preconceived intent, an application for adjustment of status should as a general rule be granted in the exercise of discretion in
  the case of an immediate relative or other specified alien who under Operations
  Instruction 245.3(b) and 8 C.F.R. 242.5(a)(2) and (4) could be granted voluntary
  departure until invited to appear before a United States consul to apply for an
  immigrant visa.
(3) Where a finding of preconceived intent was the only negative factor cited by the
  immigration judge in denying the respondent's application for adjustment of status as
  the beneficiary of an approved immediate relative visa petition and no additional
  adverse matters are apparent in the record, and where significant equities are
  presented by the respondent's United States citizen wife and child, a grant of adjustment of status is warranted as a matter of discretion.
CHARGE:
  Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)}—Nonimmigrant—remained
                        longer than permitted
ON BEHALF OF RESPONDENT:                           ON BEHALF or SERVICE:
 Laurier B. McDonald, Esquire                         Richard M. Casillas
  P.O. Drawer 54                                      Trial Attorney
  Edinburg, Texas 78539
BY:   Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members



  This case is before us on appeal from the December 21, 1977, decision
of an immigration judge, rendered in reopened deportation proceedings, which denied the respondent's application for adjustment of
status pursuant to section 245 of the Immigration and Nationality Act,
8 U.S.C. 1255. The appeal will be sustained.
  The respondent, a 26-year-old native and citizen of Mexico, entered
the United States as a nonimmigrant visitor for pleasure on July - 1,
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1976, upon presentation of a border crossing card, Form 1-186, issued to
him in 1972.' On that same date, he married his United States citizen
spouse whom he had known for a considerable period of time prior to
their marriage; a ehild was born in the United States in 1974 as a result
of that relationship.
   A.t the initial deportation hearing, the respondent conceded deportability as a nonimmigrant who remained longer than permitted
and was granted the privilege of voluntary departure in lieu of deportation. Prior to the expiration of the authorized period of voluntary
departure, the respondent filed the present motion to reopen for consideration of his application for section 245 relief predicated upon his
status as the beneficiary of an approved immediate relative visa petition. The immigration judge granted the respondent's motion to reopen the deportation proceedings, found him statutorily eligible for
adjustment at the reopened hearing that ensued, but denied him the
relief sought in the exercise of discretion on the ground that he had
entered the United States in July of 1976 with a preconceived intent to
remain permanently.
   We find that the record, while providing some support. for the
immigration judge's findings, is ambiguous at best with respect to the
respondent's actual intentions at the time of his entry. We need not
dwell on that question, however, in light of our conclusion that the
adverse factor of preconceived intent, if it existed, has been overcome
by the equities presented.
   We note with approval present Immigration and Naturalization
Service policy, as reflected in Service Operations Instruction 245.3(b),
regarding the discretionary grant or denial of an adjustment application. Operations Instruction 245.3(b) provides that notwithstanding
evidence establishing an intent on the part of 'a nonimmigrant to
circumvent the normal visa process, i.e., a preconceived intent to
remain permanently at the time of entry as a nonimmigrant, an
adjustment application should not be denied in the exercise of discretion where substantial equities are present in the case. Under that
Instruction, substantial equities are considered to exist if the facts are
such that the alien would be granted voluntary departure until he is
invited to appear at a United States consulate to apply for an immigrant visa. The Code of Federal Regulations, 8 C.F.R.
242.5(a)(2)(vi)(A) and 245.5(a)(3),2 authorizes the District Director in
  I The respondent, who resided in a community adjacent to the United States border
prior to his July 1976 entry, testified that he had traveled to and from this country
frequently, "[miore than one hundred times," (Tr. p. 7) and never experienced any
difficulties with the immigration authorities.
    The subject matter of the foregoing regulation was previously covered by Service
Operations Instruction 242.10(0(6) and 242.10(b)(1).

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his discretion, to grant voluntary departure to an immediate relative
of a United States citizen,3 prior to the commencement of his deportation hearing, until such time as the United States consul abroad is
ready to issue an immigrant visa.
   The Service's internal Operations Instruction 245.3(b) binds neither
the immigration judge nor the Board; moreover, under the express
terms of the regulation which gives effect to the Instruction, whether
an alien may benefit from the Instruction as one who would be granted
extended voluntary departure is a discretionary determination to be
made by the District Director prior to the commencement of the
hearing. We believe, however, that the policy manifest in the Instruction, i.e., to favor immediate relatives seeking a grant of adjustment of
status by essentially negating preconceived intent as an adverse factor
in meritorious cases, may appropriately be adopted by the immigration judge and the Board in exercising discretion on applications for
relief under section 245.
   The finding of preconceived intent was the only negative factor cited
by the immigration judge in denying the respondent's adjustment
application and no additional adverse matters are apparent in the
record. A significant equity is presented by the respondent's United
States citizen wife and child. We conclude that a grant of adjustment
of status is warranted in this case and will accordingly sustain the
appeal and remand the record to the immigration judge for further
processing of the application for adjustment of status filed by the
respondent and for the entry of an order not inconsistent with this
opinion. In light of our holding, we need not reach the alternative
arguments advanced by the respondent on appeal.
   ORDER. The order of the immigration judge is vacated and the
record is remanded for further proceedings in accordance with the
foregoing opinion.




  a See 8 C.F.R. 242.5(a)(3) for other classes of aliens eligible for a prehearing grant of
extended voluntary departure.

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