Interim Decision # 3036
MATTER OF BATTISTA
In Deportation Proceedings
A-22537674
Decided by Board October 21, .1.987
(1.) The immigration judge erred in denying the respondent's application for adjustment of status on the ground that he had a preconceived intent to remain in the
United States at the time of his entry as a nonimmigrant where the respondent
was eligible for an immigrant visa and his uncontroverted testimony was that he
had only intended to visit his family in this country for a short period at the time
of his arrival.
(Z) The immigration judge also erred by not weighing the responden Vs biguifican I.
family ties since preconceived intent is only one factor to be considered hi the exercise of administrative discretion.
(3) In accordance with an interim rule promulgated by the Immigration and Naturalization Service, the Board of Immigration Appeals will limit its application of
the bar of section 245(cX2) of the Immigration and Nationality Act, 8 U.S.C.
§ 1255(cX2) (1982), as amended by the Immigration Reform and Control Act of
1986, which precludes adjustment of status to any alien, other than an immediate
relative, who is not in legal status on the date of filing, to aliens who filed adjustment applications on or after November 6, 1986.
CHARGE:
Order; Act of 1952 — Sec. 242(aX2) [
8 U.S.C. §1251(x)(2)] —Nonimmigrant —remained longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF bbliVICE:
Timothy M. Manley. Esquire Russell A. Emit
450 Grant Street, Suite 104 District Counsel
Akron, Ohio 44311
Milhollan, Chairman; Dunne, Morris, Vaccct, and Heilman, Board Members
In a decision dated June 30, 1983, the immigration judge found
the respondent deportable as an overstayed nonimmigrant under
section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C.
§ 1251(a)(2) (1982), denied his application for adjustment of status,
and granted him voluntary departure in lieu of deportation. The
respondent has appealed from that decision. The appeal will be sustained and the record will be remanded to the immigration judge.
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Interim Decision #3036
The respondent is a 31-year-old native and citizen of Italy who
entered the United States on January 9, 1978, as a nonimmigrant
visitor for pleasure. The record reflects that he was the beneficiary
of a visa petition which was filed on his behalf by his United States
citizen father and approved on April 8, 1974. The respondent filed
an adjustment application on February 16, 1978. The record further reflects that the respondent was convicted on June 21, 1982, of
breaking and entering, grand theft, and possession of criminal
tools. He was married on August 27, 1982, to a United States citizen who was pregnant at the time of his deportation hearing.'
The Immigration and Naturalization Service issued an Order to
Show Cause and Notice of Hearing (Form 1-221) on May 13, 1983,
charging the respondent with deportability as an overstay. On
June 22, 1982, the district director notified the respondent that his
adjustment application had been denied because he had a preconceived intention to remain in the United States at the time of his
entry as a nonimmigrant. In deportation proceedings before the immigration judge, the respondent conceded deportability and renewed his adjustment application.
The immigration judge denied the respondent's application for
adjustment of status on the ground that he had a preconceived
intent to remain when he entered this country. In reaching this
conclusion the immigration judge noted that the respondent had
conceded that he was aware of his father's approved visa petition
when he applied for a nonimmigrant visa, that he did not inform
the consul of that fact, that he made no attempt to return to Italy
within the time granted by his visa, and that he failed to prosecute
his 1978 adjustment application until an Order to Show Cause was
issued.
We disagree with the findings of the immigration judge and the
district director in regard to the respondent's intent at the time of
his 1978 entry to the United States. Although the respondent
admits knowledge of the visa petition filed by his father, he has
consistently stated, both in an affidavit signed on September 12,
1978, and at the hearing, that he only intended to visit his family
for a short period until he arrived in this country, at which time
they convinced him to stay. As counsel points out, the respondent
had an approved visa petition and could easily have obtained an
immigrant visa if he had intended to live permanently in the
The record reflects that during his deportation proceedings, the respondent's
wife filed a visa petition on his behalf, which counsel sought to have expeditiously
adjudicated. However, it does not indicate whether the petition was ever approved
ur denied by the district director.
A S1
Interim Decision #3036
United .States. 2 Although the respondent admits that he did not
inform the consul of his approved visa petition, he asserts that he
was not asked whether a petition had been filed on his behalf. The
Service was unable to obtain the respondent's nonimmigrant visa
application to establish that he lied to the consul. Furthermore, the
consul indicated that a visa might have been granted anyway, even
if the respondent's true status had been known. Under the circumstances presented, we are not persuaded that the respondent had a
preconceived intention to remain in the United States when he applied for a visitor's visa and entered the country.
In any case, as counsel for the respondent notes, a preconceived
intent is only one factor to be considered in exercising discretion on
an adjustment application, so the immigration judge erred in finding the respondent ineligible to adjust on that basis alone. See
Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981); Matter of Cavazos,
17 I&N Dec. 215 (BIA 1980). The record reflects that the respondent's parents and siblings are United States citizens and lawful
permanent residents and that he has a United States citizen spouse
and child. These are significant equities which the immigration
judge failed to consider in denying the respondent's application.
The immigration judge also erroneously found the respondent ineligible for a waiver of inadmissibility for his conviction under section 212(h) of the Act,
8 U.S.C. § 1182(h) (1982). The immigration
judge correctly determined that the respondent was no longer the
child of a United States citizen, but he ignored the fact that the
respondent has a United States citizen spouse. We therefore find it
appropriate to remand the record for reconsideration of the respondent's adjustment application. 3
We note that section 245(c)(2) of the Act,
8 U.S.C. § 1255(c)(2)
(1982), was amended by section 117 of the Immigration Reform and
Control Act of 1986, Pub. L. No. 99 -603,
100 Stat. 3359, to preclude
adjustment of status to any alien, other than an immediate relative, who is not in legal status on the date of filing his application.
It is unclear from the record whether the respondent was in legal
2 We note that the respondent had immediate relative status from April 8, 1974,
when his visa petition was approved until November 23, 1976, when he reached the
age of 21. At that time his status was automatically converted to that of first preference. See
8 C.F.R. § 204.5 (1976). When the respondent entered the United States on
January 9, 1978, fourth-preference visa numbers were available. See Department of
State Visa Bulletin, Vol. III, No. 13 (January 1978).
2 On remand, the immigration. judge should also determine the status of the visa
petition filed by the respondent's wife and consider holding the proceedings in abeyance if it has not yet been adjudicated. See Matter of Garcia,
16 I&N Dec. 653 (BIA.
1a78).
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Interim Decision #3036
status on February 16, 1978, when his application was filed because
the Order to Show Cause indicates that his stay was authorized to
February 8, 1978, but his Arrival-Departure Record (Form 1-94) reflects admission until February 23, 1972_ In any case, the Service
has published an interim rule which provides that the new section
245(c)(2) bar only applies to aliens whose adjustment application
was filed on or after November 6, 1986. See 52 Fed. Reg. 6820 (1987)
(to be codified at
8 C.F.R. § 245.1(bX6)) (interim rule published
March 3, 1987). In view of the Service's position, the Board will
apply the same rule in order to maintain consistency in treatment
to all aliens whose applications were pending before an immigration judge or the Board prior to November 6, 1986.
Accordingly, the appeal will be sustained and the record will be
remanded for further proceedings and the entry of a new decision.
ORDER: The appeal is sustained. The decision of the immigration judge is vacated and the record is remanded for further proceedings consistent with the foregoing opinion.
