Interim Decision #2928
MATTER OF TANAHAN
In Section 245 Proceedings
A-23273236
Decided by Regional Commissioner November 13, 1981
(1) Adjustment of status under section 245 of-the Immigration and Nationality Act,
8 U.S.C. 1255, was not designed to supersede the regular consular visa-issuing processes
or to be granted in nonmeritorious cases. Chen v. Foley, 385 F.2d 929 (6 Cir. 1967),
cert. denied,
393 U.S. 838 (1968).
(2) The determination to grant permanent residence status under section 245 of the
Immigration and Nationality Act, 8 U.S.C. 1255, lies entirely within the discretion of
the Attorney General. An applicant who meets the objective prerequisites for adjustment of status is in no way entitled to that relief. Jarecha v. INS, 4174F.2d 220 (5 Cir.
1969).
ON BEHALF OP APPLICANT: Walter G. Yartanian, Esquire
79 Milk Street
Boston, Massachusetts 02109
This matter is before the Regional Commissioner on certification from
the Acting District Director in Boston, Massachusetts. The Acting District Director denied the instant application as a matter of discretion
upon determining that the applicant failed to meet the "inspected and
admitted or paroled" provision of section 245(a) of the Immigration and
Nationality Act, 8 U.S.C. I255(a).
Section 245(a) of the Immigration and Nationality Act piovides in
part that:
The status of an alien who was inspected and admitted or paroled into the United States
may be adjusted by the Attorney General, in his discretion and under such regulations
as he may prescribe, to that of an alien lawfully admitted for permanent residence . . . (Emphasis .supplied). '
The record relates to a 40-year-old married male alien, a native and
citizen of Iran, who last arrived -in the United States on June 5, 1979, by
way of TWA flight number 753 from London, England. During the
inspection process the applicant'was referred by the primary ittnnigradon inspector at the port of entry to the secondary inspection area
because the applicant was suspected of being an intending immigiant
not in possession of a valid unexpired immigrant visa pursuant to section 212(a)(20) of the Act.
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During the secondary inspection, it was ascertained that the applicant
had been residing in England with his family and had resigned from the
Oil Service Company of Iran of 1976_ In addition, correspondence was
discovered that indicated the applicant was actively seeking employment in the United States and had begun negotiations with an Atlanta
employment agency. A letter was also found from the British Immigration office indicating that the applicant's request for the return of his
passport had the effect of "cancelling the previous application for leave
to remain" in the United Kingdom.
Given these facts the immigration inspector refused to admit the
applicant to the United States and the applicant chose to execute a
formal withdrawal of his application for admission instead of being
detained for further inquiry by an immigration judge pursuant to section 235(b) of the Act.
Service Operations Instructions 235.1(o) sets forth the procedures
to be followed in cases where an application for admission has been
withdrawn and reads in part as follows:
. In any case of an alien whose application for admission has been withdrawn or who
has been ordered excluded and deported by a special inquiry officer and who is being
turned over to the carrier which brought him to the United States for removal to the
country from whence he came, the Form 1-94 which that alien presented at the time of
his application For admission shall be endorsed with the parole stamp and with the .
following notation thereon: (Show date to which paroled) To the (show name of carrier)
for the purpose of removing (show name of alien) from the United States.
The original of this form shall be given to the alien for presentation to the carrier for
endorsement of departure data and return to the Service. At the same time, Form I-259
shall be appropriately endorsed and served on the carrier. The port of entry will retain
the duplicate copy of Form 1-94 only until the original with departure data is received
and forwarded to the Central Office .. .
The record contains a copy of Form 1-275 (Notice of Withdrawal of
Application For Admission to the United States) which states in part:
. I understand that my admissibility is questioned for the above reasons, which I have
read or which have been read to me in the English language. Although I understand I
may choose to appear before an immigration judge for a hearing in exclusion proceedings,
I request that I be permitted to withdraw my application for admission and to return
abroad ...
This statement was signed by the alien on June 5, 1979, and the alien's
signature was witnessed by a Supervisory Immigration Inspector.
The record also contains Form 1-94 (Arrival-Departure Record) relating to the alien. Form 1-94 indicates that the alien was paroled on June
5, 1979, for the purpose of being removed to London, England, on June
5, 1979, via Trans World Airlines. The record further indicates that an
officer of the Immigration Service served Trans World Airlines Form
1-259 (Notice to Detain, Deport, Remove or Present Aliens) on June 5,
1979, at 5 p.m. Form 1-259 was signed for by an agent of Trans World
Airlines and reads in part as follows:
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to the owner, agent . . . of the Trans World Airlines. Pursuant to the provisions of
the Immigration and Nationality Act, and the Regulations issued by the Attorney
General thereunder, you are directed to . . . Remove to London on June 5, 1979, at 7:45
p.m. . . . lranahan, Megertlich
The applicant, however, did not depart the United States,. but instead
absconded from the port of entry. The next day, June 6, 1979, he
appeared voluntarily with his attorney and was processed as an alien
who had entered without inspection. 1 On June 7, 1979, the United States
Attorney declined prosecution under 8 U.S.C. 1325 for entry without
inspection in favor of adininistrative proceedings. The applicant was
then granted voluntary departure pursuant to the policy then in effect
concerning Iranians.
On August 16, 1979, the applicant commenced' the initial processing
of an application for labor certification and this eventually resulted in his
being the beneficiary of a sixth-preference visa petition approved on
January 16, 1980. An Application for Status as Permanent Resident was
filed on ,A.pril 4, 1980, and the question of the applicant's eligibility for
adjustment of status is now at issue.
Counsel's argument is succinct and simply states "parole is parole,
whether to the airline for five hours or sixty days." In conclusion counsel states that there is no question that the applicant was paroled and
therefore he is statutorily 'eligible for adjustment under section 245 of
the Act.
The evidence of record clearly establishes that the alien was paroled
into the 'United States pursuant to Service Operations Instructions
235.1(o). Therefore, the sole issue for our consideration is whether the
alien's application for adjustment to that of a permanent resident under
section 245 of the Act merits favorable exercise of the Attorney General's
discretion.
The Act empowers the Attorney General or his designee (normally an
officer of the Immigration and Naturalization Service) to determine if an
applicant is entitled to the favorable exercise of the Attorney General's
discretion. Statutes cannot.be so detailed as to contain every regulation
and form of procedure by which legislative policies set forth therein are
carried out. Consequently, the courts have recognized that administrative officers must be permitted some discretion in the enforcement of
laws.
As a parolee, applicant for admission should not have been deemed to have made an
entry without inspection under section 275 of the Immigration and Nationality Act, 8
U.S.C. 1325. The Board of Immigration Appeals held in Matter of Barragan-Garibay, 15
I&N Dec. 77 (BIA 1974), that where a paroled alien is erroneously prosecuted and convicted under section 275, the government will be collaterally estopped from denying that
the applicant made an entry in subsequent administrative proaaaclingc cneh as exclusion.
This matter is distinguished from - Barragan because this applicant was never convicted
under section 275 and therefore the doctrine of collateral estoppel is not applicable.
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Adjustment of status under section 245 of the Act was not designed to
supersede the regular consular visa-issuing processes or to be granted
in nonmeritorious cases. Chen v. Foley, 385 F.2d 929 (6 Cir. 1967),
cert denied,
393 U.S. 838 (1E68). An applicant who meets the objective
prerequisites for adjustment. of status is in no way entitled to that relief.
arecha v. INS, 417 F.2d 22C (5 Cir. 1969). In the instant case, the alien
has no close family ties or dependents living in the United States (the
-alien's-spouse and his two children are citizens of Iran and have resided
in London, England since November 1978), We also find that the alien's
actions on June 5, 1979, clearly indicated that he intended to remain in
the United States by superseding the regular consular visa-issuing process and by asconding from Trans World Airlines he hindered the _
Service in its effort to enforce the legislative policies set forth by
Congress.
After carefully considering the entire record, together with counsel's
representations on appeal, it is our considered opinion that the alien is
not entitled to adjustment of status. Accordingly, the application is
denied as a matter of discretion and the following order will be entered.
ORDER: Application denied.
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