Interim Decision #2866
MATTER OF IBRAHIM
In Deportation Proceedings
A.,21212087
Decided by Board May 18, 1981
(1) Entry into the United States as a nonimmigrant with a preconceived intention to remain
is a serious adverse factor to be considered by immigration judges and the Board
in making discretionary determinations under the Immigration and Nationality Act..
Matter of Garcia-Castillo, 10 I&N Dec. 516 (BIA 1964), reaffirmed.
(2) Immigration and Naturalization Service Operations Instructions are not binding upon
immigration judges or this Board but may be adopted where appropriate.
(3) In the absence of other adverse factors, an application for adjustment of status as an
immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with
a preconceived intention to remain_ Matter of Cavazos, Interim Derision 9.750 (MA
1980), clarified and reaffirmed.
(4) The benefits of Matter of Cavazos, Slipra, are limited to immediate relatives, and an
applichtion for adjustment of status by a fifth-preference immigrant who entered the
United States as a nonimmigrant with a preconceived intention to remain is properly
denied in the exercise of discretion.
CHARGE:
Order: Act of 1952 Sec. 241(a)(2) I8 U.S.C. 1251(a)(2)l Nonimmigrant remained longer
— —
than permitted
This case is before us on a motion filed by the Immigration and Naturalization Service to reconsider our decision of July 10, 1980, remanding
the case to the immigration judge for further consideration. The motion
will be granted and the appeal will be dismissed.
The respondent is a 35-year old native and citizen of Lebanon_ His
-
last. entry into the United States was on May 19, 1976, as a nonimmigrant visitor for pleasure. On June 3, 1976, he filed an application for
adjustment of status based upon a fifth-preference visa petition filed by
his sister and approved by the Service in October 1975. The District
Director denied the applidation because he found. that the respondent
had entered the United States witl the preconceived intention of
remairtinkAn Order to Show Cause was issued on June 16, 1977, charging the respondent with deportability under section 241(a)(2) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), for having
55
Interim Decision #2866
remained longer than permitted. At his hearing, the respondent admitted the allegations in the Order to Show Cause. He was found deportable as charged and the immigration judge denied his application for
adjustment of status because he found that the respondent had entered
the United States as a nonimmigrant with the preconceived intention of
remaining.
On appeal, we found ample evidence in the record to support the
immigration judge's conclusion that the respondent had entered the
United States with the preconceived intention of remaining. The immigration judge's discretionary denial of adjustment of status was in accordance with existing precedent at that time_ However, while this case
was pending on appeal we reevaluated the weight to be accorded the
adverse factor of entry as a nonimmigrant with a preconceived intention
to remain vis-a-vis the equity of family ties in the United States. See
Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980).
In Matter of Cavazos, supra, we adopted the Service policy as set
forth in Operations Instruction 245.3(b) regarding the discretionary grant
or denial of adjustment applications. Operations Instruction 245.3(b)
provides that notwithstanding evidence establishing an intent on the
part of a nonimmigrant to circumvent the normal visa-issuing 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.
Substantial equitiesAre 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. Under 8
C.F.R- 242.5(a)(2)(vi), voluntary departure may be granted to an eligible alien who is admissible to the United States as an immigrant and
(A) Who is an immediate relative of a United States citizen, or
••••
(C) Who has a priority date not more than 60 days later than the date shown in the
latest visa office bulletin and has applied for an immigrant visa at an American Consulate which has accepted jurisdiction over the case.
The respondent in Cavazos came within category (A) above. As the
respondent in this case appeared to come within category (C), we entered
an order remanding this case to the immigration judge for further consideration in light of Matter of Cavazos, supra.
The Service now moves us to reconsider our decision to remand this
case to the immigration judge on the ground that this respondent does
not and should not benefit under Operations Instruction 245.3(b) and
Matter of Cavazos., supra_ The Service contends that we have linked
Operations Instruction 245.3(b) and 8 C.F.R. 242.5(a)(2)(vi) together in
this case to virtually eliminate preconceived intent as an adverse factor
56
Interim Decision #2866
in adjustment cases—a result which was never intended by the Service
in promulgating the Operations Instruction. It emphasizes that under
both the instruction and the regulation, relief is granted or denied in the
exercise of the District Director's discretion. The Service does not urge
reconsideration of Matter of Cavazos, supra,.but argues that it is distinguishable in that the respondent here is a fifth-preference immigrant
whereas Mr. Cavazos was an immediate relative. Finally, the Service
refers to a line of cases in which we and the courts have held that entry
with a preconceived intention to remain is a serious adverse factor
relevant to the exercise of discretion. The Service urges us to limit
Cavazos to its facts and not extend its benefits to immigrants other than
immediate relatives.
We are satisfied that Operations Instruction 245:3(b) is not determinative in this case. That instruction is directed to District Directors when
they are considering adjustment of status under section 245. In this
case, an Order to Show Cause has been issued and the case has long
been out of the hands of the District Director. Moreover, as we noted in
Cavazos, the Operatinns Instruction is not binding upon immigration
judges or this Board. We adopted the policy of that instruction in Matter
of Cavazos with respect to immediate relatives because we found it to
be appropriate. As we now find it to be inappropriate with respect to
this case, we reject it.
The question of entry into the United States as a nonimmigrant with a
preconceived intention to remain must be viewed in perspective. Entry
into the United States with a preconceived intention to remain was once
a statutory bar to adjustment of status. Congress eliminated that bar in
1960. See Pub. L. No. 86-648, 74 Stat. 505; see also the discussion in
Ameeriar v. INS,
438 F.2d 1028 (3 Cir. 1971), cert. denied,
404 U.S. 801
.(1971). Thereafter, we concluded that entry with a preconceived intention to remain 33as still a relevant factor in the exercise of discretion and
that it was a serious adverse factor. Matter of Garcia-Castillo, 10 I&-N
Dec. 516 (BIA 1964); affd. Castillo v. INS,
350 F.2d 1 (9 Cir. 1965).
The courts have generally upheld our discretionary denials of adjustment of status in cases where the alien entered with a preconceived
intention to remain and had no close family ties in the United States. See
e.g., Santos v. INS, 375 F_2d 262 (9 Cir_ 1967); Chen v. Foley,
385 F.2d
929 (6 Cir. 1967), Ameeriar v. INS, supra; Soo Yuen v. INS,
456 F.2d
1107 (9 Cir. 1972); Jain v. INS,
612 F.2d 683 (2 Cir. 1979).
The Immigration and Nationality Act makes immediate relative status a special and weighty equity. The Congress has accorded immediate
relatives important dispensations not available to visa-preference
applicants. Section 201(a) of the Act exempts immediate relatives from
the Act's numerical limitations on immigration.' Further, section 245 of
I Section 201(b) of the Act defines immediate relatives as "the children, spouses, and
parents of a citizen of the United States . . . ."
57
Interim Decision #2866
the Act which provides for adjustment of status, denies that benefit to
aliens other than immediate relatives who after January 1, 1977, continue in or accept unauthorized .employment prior to the filing of an
application for adjustment of status. Section 245(c)(2). In view of this
most favorable status accorded by Congress, we believe it appropriate
to accord greater weight to immediate relative status than to visa-preference status when making discretionary determinations under the Act.
Therefore, the benefits of Matter (If Cavazos, supra, will be limited to
immediate relatives.
The respondent in this case is not an immediate relative: he is a
fifth-preference immigrant. Accordingly, the appeal will be dismissed.
ORDER The motion to reconsider is granted.
FURTHER ORDER: Upon reconsideration, our prior order of
July 10, 1980, is withdrawn and the appeal is dismissed.
58
