Interim Decision #2911
MATTER OF KETEMA
In Exclusion Proceedings
A-23285380
Decided by Board July 2, 1982
The immigration judge and the Board are without jurisdiction to entertain an application for relief under section 212(d)(4XA) of the Immigration and Nationality Act, 8 U.S.C.
1182(dX4)(A), which authorizes the waiver of documentary requirements on the basis of
unforeseen emergency in the case of qualifying nonimmigrants, such jurisdiction having
vested by reason of 8 C.F.R. 212.1(f) in the District Director, acting with the concurrence
of the Director of the State Department Vice Office. Matter of Le Floch, 13 I&N Dee 251
(BIA 1969), overruled in part.
EXCLUDABLE: Act of 1952—Sec. 212(a)(20) U.S.C. 1182(a)(20)]—Immigrant—not in
possession of a valid unexpired visa or other valid entry
document
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Donald N. Sweeney, Esquire Gerald S. Hurwitz
One Boston Place Appellate Trial Attorney
Boston, Massachusetts 02108
Jim Tom Haynes, Esquire
100016th Street, N.W.
Room 511
Washington, D.C. 20036
Br Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
In a decision dated September 15, 1981, an immigration judge found
the applicant excludable under section 212(a)(20) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(20), and ordered him excluded and
deported from the United States. The applicant appealed from that
decision and oral argument in the case was heard on June 15, 1982. The
appeal will be dismissed.
The applicant, a native and citizen of Ethiopia, applied for admission
to the United States on October 1, 1980, upon presentation of a nonimmigrant visitor for•pleasure visa which he obtained for the ostensible purpose of attending his sister's wedding_ The applicant was paroled into
the United States for deferred inspection and these exclusion proceedings were subsequently instituted.
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The immigration judge concluded that the applicant is not a bona fide
visitor for pleasure but instead is seeking to enter the United States to
pursue a college education. The immigration judge's conclusion is supported by the evidence before him at the time he rendered his decision.
In any event, an application for admission to the United States is a
continuing application and admissibility is determined on the basis of
the law and the facts existing at the time the application is. finally
considered. See Matter of K-, 9 I&N Dec. 143 (BIA 1959; A.G. 1961),
aff'd in Klapholz v. Esperdy,
201 F. Supp. 294 (S.D.N.Y. 1961), affd
per euriani,
302 F.2d 928 (2 Cir_ 1962), cert. denied,
371 U.S. 891 (1962);
Matter of R-M-,
9 I&N Dec. 170 .(BIA 1961). It was conceded at oral
argument that the applicant is presently attending school in this country.
The applicant, now a student, is dearly not entitled to admission to
the United States as a nonimmigrant visitor for pleasure pursuant to
section 101(a)(15)(B) of the Act, 8 U.S.C. 1101(a)(15)(B). See Matter of
Le Floch,
13 I&N Dec. 251 (BIA 1969). Cf. Matter of Healy and
Goodchild,
17 I&N Dec. 22 (BIA 1979). He has not been issued a nonimmigrant student visa pursuant to section 101(a)(15)(F) of the Act. As the
applicant has not established that he is entitled to nonimmigrant status
under any category specified in section 101(a)(15) of the Act, he must be
considered to be an immigrant (see section 214(b) of the Act, 8 U.S.C.
1184(b)) and hence was properly found excludable under section 212(a)(20)
as an immigrant without the requisite travel and entry documents.
Matter of Healy and Goodchild, supra.
The applicant submits on appeal that the lack of a student visa is a
ground for exclusion that can and should be cured in his caseby section
212(d)(4)(A) of the Act, which authorizes the waiver of documentary
requirements on the basis of unforeseen emergency in the case of qualifying nonimmigrants. l The applicant's contention must be rejected. Even
if we were to assume that the applicant could demonstrateseligibility for
. a nonimmigrant student visa, the immigration judge and the Board are
without jurisdiction to entertain an application for a section 212(d)(4)(A)
waiver.
The applicant insists that immigration judges and the Board have
jurisdiction to consider section 212(d)(4)(A) waiver applications, noting
that while no express authority over such applications is conferred upon
us by statute or regulations, the regulations grant the immigration
judge and the Board such discretion and authority in exclusion proceedings "as is appropriate and necessary for the disposition of [a given
case.]" 8 C.F.R. 3.1(d); 8 C.F.R. 236.1. That seemingly broad grant of
The "unforeseen emergency' cited by the applicant was his inability to obtain a copy or
his high school graduation certificate with which to support a student visa application in
sufficient time to attend his sister's wedding.
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authority is, however, "[s]ubject to any specific limitation prescribed by
[the Act and the regulations.]" 8 C.F:R. 3.1(d); 8 C.F.R. 236.1. See
generally Matter of DeG-, 8 I&N Dec. 325 (BIA 1959; A.G. 1959);
Matter of Manneh,
16 I&N Dec. 272 (BIA 1977).
The power the applicant would have us exercise has been expressly
limited by the regulations which unambiguously give the District
Director, acting with the concurrence of the Director of the State Department. Visa Office, sole discretion to grant or deny a section 212(d)(4)(A)
waiver. 8 C.F.R. 212.1(0.2 Immigration judges and the Board do not
have that authority. See Matter of Manneh, supra. Consistent with this
determination, our decision in Matter of Le Flock supra, is overruled
insofar as we indicated that the immigration judge and the Board have
jurisdiction over a section 212(d)(4)(A) waiver application.
Finally, the applicant alleges that he did not receive a fair hearing
before the immigration judge and requests that the record be remanded
for a de novo hearing. Upon careful review of the record, we find no
basis for complying with the applicant's request.
ORDER: The appeal -is dismissed.
2 8 G.F.R. 212.1 provides in pertinent part:
(f) Unforeseen emergency. A visa and a passport are not required of a nonimmigrant
who, either prior to his embarkation at a foreign port or place or at the time of arrival at
a port of entry in the United States, satisfies the district director at the port of entry
(after consultation with and concurrence by the Director of the Visa Office of the
Department of State) that, because of an unforeshen emergency, he was unable to
obtain the required documents, in which case a waiver application shall be made on
Form I-193.
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