Interim Decision #3034
MATTER OF EGBUNINE
In Deportation Proceedings
A-26646255
Decided by Board September 22, 1987
(1) Pursuant to sections 245(eXl) and (2) of the Immigration and Nationality Act, 8
U S.C. § 1255(eXl) and (2) (Supp. IV 1986), an alien may not adjust his status if he
seeks to receive an immigrant visa on the basis of a marriage which was entered
into while the alien is facing administrative or judicial proceedings regarding his
right to enter or remain in the United States.
(2) At a minimum, administrative proceedings begin with the filing of an Order to
Show Cause and Notice of Hearing (Form 1-221) with the Office of the Immigration Judge.
(3) Under section 204(h) of the Act, 8 U.S.C. § 1154(h) (Supp. IV 1986), an alien may
not be granted immediate rotative status by reasr, n of a marriage which was entered into while the alien is facing administrative or judicial proceedings regarding his right to enter or remain in the United States, unless the alien resides outside of the United States for a 2-year period beginning after the date of the marriage.
(4)An application for a waiver of excludability should not be submitted by an alien
subject to the 2-year residence requirement under section 204(h) of the Act, until
the respondent becomes eligible for immediate relative status.
CHARGE:
Order:: Act of 1952—Sec. 241(aX4) [
8 U.S.C. § 1251(aX4)]—Crime involving moral
turpitude
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Dr. Walter H. Oji, Esquire Charles Wiegand III
2600 South Loop West, Suite 155 Supervisory General Attorney
Houston, Texas '77054
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated July 2, 1987, an immigration judge denied the
respondent's motion to reopen proceedings. The respondent has appealed. The appeal will be dismissed.
The respondent is a 32-year-old native and citizen of Nigeria. On
May 3, 1987, an immigration judge found the respondent deportable on the charge set forth above, denied his applications for
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Interim Decision #3034
asylum and withholding of deportation, and ordered him deported
to Nigeria. The respondent did not appeal the decision. On June 19,
1987, the respondent filed a motion to reopen proceedings so that
he could apply for adjustment of status. The immigration judge
denied the motion on July 2, 1987.
On appeal, the respondent states that the immigration judge
abused his discretion because he did not consider the effect of the
respondent's "exclusion" on his United States citizeu wife; the immigration judge erred in applying the 2-year foreign residence requirement to the request for relief under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (1982); and the
immigration judge erred in finding that the respondent had not
stated any new facts that would alter the result of the earlier proceedings.
We have held that an alien must establish prima fade eligibility
for the relief sought before a motion to reopen will be granted.
Matter of Tuakoi,
19 I&N Dec. 341 (BIA 1985); Matter of Martinez-Romero,
18 I&N Dec. 75 (131A 1981), affd sub norm Martinez- -
Romero v. INS,
692 F.2d 595 (9th Cir. 1982); Matter of Lam,
14 I&N
Dec. 98 (BIA. 1972); see also Matter of Garcia,
16 I&N Dec. 653 (BIA
1978); Matter of Sipus, 14 I&N Duo. 229 (31A 1972). In order to
qualify for adjustment of status under section 245 of the Act,
8
U.S.C. § 1255 (1982), an alien must apply for the relief, establish
that he is eligible to receive an immigrant visa and is admissible to
the United States for permanent residence, and that an immigrant
visa is immediately available to him at the time his application is
filed.
The record reflects that the respondent was served on August 20,
1986, with an Order to Show Cause and Notice of Hearing (Form I-
221) dated May 19, 1986. The deportation hearing convened in October 1986. On April 30, 1987, during the course of the hearings,
the respondent married a United States citizen. As noted, the immigration judge's initial decision in this case was rendered on May
8, 1987.
Sections 245(eX1) and (2) of the Act 1 provide as follows:
(eX1) An alien who is seeking to receive an immigrant visa on the basis of a
marriage which was entered into during the period described in paragraph (2)
may not have the alien's status adjusted under subsection (a).
(2) The period described in this paragraph is the period during which administrative or judicial proceedings are pending regarding the alien's right to enter or
remain in the United States.
These provisions were added to section 245 of the Act by section 5(a) of the Immigration Marriage Fraud Amendments of 1986.
Pub. L. No. 99-639, 100 Stet. 3537.
Interim Decision #3034
We find that this section governs the disposition of this appeal.
At a minimum, administrative proceedings begin with the filing of
an Order to Show Cause with the Office of the Immigration Judge.
See
52 Fed. Reg. 2937 (1987) (to be codified at
8 C.F.R. § 3.14(a)). In
this case, the Order to Show Cause was filed on August 26, 1986.
The respondent was married on April 30, 1987, while administrative proceedings were ongoing. Therefore, the respondent is not eligible to be adjusted under the provisions of section 245(a) of the
Act. Accordingly, he has not demonstrated prima facie eligibility
for adjustment of status, and reopening of the proceedings to apply
for such relief is clearly not warranted.
Any issue regarding a section 212(h) waiver of excludability is
premature. Section 204(h) of the Act,
8 U.S.C. § 1154(h) (Supp. W
1986), provides that an alien may not be granted immediate relative status by reason of a marriage which was entered into while
the alien is facing administrative or judicial proceedings regarding
his right to enter or remain in the United States, unless the alien
resides outside of the United States for a 2 -year period beginning
after the date of the marriage. Consequently, any waiver of excludability should be submitted when and if the respondent becomes eligible for immediate relative status.
The respondent also claims that the immigration judge did not
consider the hardship his deportation will cause his United States
citizen wife. Since the respondent is statutorily barred from adjusting his status under the provisions of section 245(a) of the Act,
there is no issue as to the wife's hardship.
In light of the foregoing, we find that the immigration judge
properly denied the motion to reopen. Accordingly, the appeal will
be dismissed.
ORDER: The appeal is dismissed.
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