KAZEMI

                                                        Interim Decision #2961




                            MATTER OF KAZEMI

                           In Exclusion Proceedings

                                   A-26183521

                     Decided by Board March 15, 1984

(1) An application for admission to the United States is a continuing application and
  an alien's admissibility is determined on the basis of the law and facts existing at
  the time the application is finally considered; therefore, the instant applicant is
  now inadmissible as a nonimmigrant student because he lacks a passport valid for
  at least the next 6 months, as required by 

(fX5X9 (1984).
(2) The Board and immigration judges have jurisdiction to entertain an application
  for waiver of inadmissibility under section 212(dX4) of the Immigration and Nationality Act, 

(dX4) (1982), where an alien renews such application
  before an immigration judge in exclusion proceedings following its initial denial
  by the district director. Matter of Ketema, 

 (BIA 1982), overruled.
  Matter of Le Floch, 

 (131A 1969), reaffirmed.
EXCLUDABLE: Act of 1952—Sec. 212(a)(20) [

(aX20)1---No valid immigrant visa
ON BEHALF OF APPLICANT:                            ON BEHALF OF SERVICE:
 Benjamin Gim, Esquire                              Guadalupe Gonzalez
 217 Park Row                                       Acting Appellate
 New York, New York 10038
                                                       Trial Attorney
BY: Milbolian, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members



  This matter is before the Board on appeal from the immigration
judge's decision of June 10, 1983, finding the applicant inadmissible
to the United States under section 212(a)(20) of the Immigration
and Nationality Act, 

(aX20) (1982), and ordering him
excluded and deported. The record will be remanded.
  The applicant is a 20-year-old native and citizen of Iran who arrived in the United States on May 29, 1983, and applied for admission as a nonimmigrant student. He presented a valid Certificate of
Eligibility for Nonimmigrant (F-1) Student Status (Form I-20A),
and an "F-1” nonimmigrant student visa issued by the American
Consul in Bern, Switzerland, valid until May 1987. However, because of questions concerning the authenticity of an extension of
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Interim Decision #2961

his passport validity, the applicant did not appear to the examining
immigration officer to be clearly and beyond a doubt entitled to
enter the United States. Therefore, he was served with a Notice to
Applicant for Admission Detained for Hearing Before Immigration
Judge (Form 1 122), alleging that he may be excludable under sec-
                 -


tions 212(a)(19) and (20) of the Act. See section 235(b) of the Act, 

(b) (1982); 

(a) (1984).
  At the exclusion hearing, the immigration judge first determined
that the exclusion ground for fraud under section 212(a)(19) was not
sustained However, he found that the applicant appeared to intend
to abandon his residence in Iran and, therefore, did not qualify
under the definition of nonimmigrant student in section
101(a)(15)(FXi) of the Act, 

(aX15)(FX0 (1982). The immigration judge also observed that under the only clearly authentic
expiration date contained in the applicant's passport (which is that
specified at the time of its initial issuance), the passport expires in
March 1984. 1 He then determined this was insufficient under the
requirements for student classification because the passport was
not valid for the entire part of the present school year or through
the applicant's contemplated full course of studies ending in 1988.
For these two reasons, the immigration judge concluded that the
applicant was ineligible for admission as a nonimmigrant student.
Lacking eligibility for admission as any other type of nonimmigrant, the applicant was found excludable under section 212(a)(20)
of the Act. See Matter of Healy and Goodchild, 

, 26
MIA 1979).
  We disagree with the immigration judge's excludability finding
on the above two bases. We conclude that the present record is insufficient to reasonably support the determination that the applicant intends to abandon his residence in a foreign country. Moreover, with regard to the passport validity issue, the immigration
judge did not apply the appropriate legal standard set forth in the
regulations. The regulation at 

(a) (1984) specifies
that "[t]he passport of an alien applying . . . for admission [as a
nonimmigrant] . . . shall be valid for a minimum of six months
from the expiration date of the contemplated period of stay, unless
otherwise provided in this chapter." (Emphasis added.) Furthermore, 

(f)(5Xi) (1984) provides an exception to this
rule, stating that an alien may be admitted as a nonimmigrant stu-

  I By operation of government agreement, this is 6 months beyond the initial expiration date shown on page 8 of the applicant's passport. See United States Department of State Public Notice 788, 

 (1981);1 C. Gordon and H. Rosenfield, Immigration Law and Procedure § 2.31a (rev. ed. 1988).
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dent, "[s]ubject to the condition that the alien's passport is valid for
a minimum period of six months at all times while in the United
States (including any automatic revalidation accorded by agreement between the United States and the country which issued the
alien's passport)." 'Thus, the immigration judge was incorrect in requiring that the applicant's passport at the time of admission be
valid through either the entire school year or the anticipated completion of his full course of study.
  The foregoing does not fully resolve the issue of the applicant's
present admissibility as a nonimmigrant student. We have long
held that 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-, 

 (BIA 1959; A.G.
1961), aff'd, Klaph.olz v. Esperdy, 201. F. Supp. 294 (S.D.N.Y. 1961),
aff'd, 

 (2d Cir. 1962), cert. denied, 

 (1962);
see also Matter of Morgan, 

 (BIA 1969); Matter of
R-M-, 9 T&N Dec. 170 (BIA 1961). Therefore, inasmuch as under its
initial expiration date the applicant's passport is valid only until
March 1984 (which includes its automatic revalidation—see supra
note 1), the applicant's admission today would violate the provisions of 

(tX5)(1) (1984) because he then would be
present in the United States without a passport valid for at least
the next 6 months. The applicant may, however, avoid this dilemma by means of a waiver of the nonimmigrant passport/visa requirements under section 212(d)(4) of the Act. 2
  The record reflects that because of the questions concerning his
passport, the applicant did make application to the district director
for a waiver under section 212(d)(4)(A), which provides: "Either or
both of the requirements of paragraph (26) of subsection (a) may be
waived by the Attorney General and the Secretary of State acting
jointly (A) on the basis of unforeseen emergency in individual
cases. . . . " See 

(1), 235.7 (1984); see also 

 (1984). The district director denied the waiver application on
June 1, l983, and the applicant sought to renew that application
before the immigration judge in these exclusion proceedings. The
immigration judge concluded that he need not adjudicate the
waiver application in view of his resolution of the issue of intent to
abandon foreign residence but noted in any event that under the
holding of Matter of Ketema, 

 (BIA 1982), immigra-

  2Alternatively, the applicant is free on remand to pursue his suggestion that he
might obtain a new extension (or verification of the present questionable extension)
of his passport from the appropriate Iranian consular officials.

                                         51
Interim Decision #2961

tion judges and the Board have no jurisdiction to adjudicate an
alien's section 212(d)(4) waiver application.
  The immigration judge's reading of Ketema is correct. Nevertheless, we have concluded that Ketema was wrongly decided and
must be overruled. Based upon examination of 8 C.F.11_ § 212.1(f)
(1982) alone, Ketema held that exclusive jurisdiction over section
212(d) waivers is vested in the district director and that immigration judges and the Board have no authority to consider such relief.
However, Ketema was decided without taking account of the provisions of 

 (1982). This regulation preliminarily confirms the terms of 

(f) (1982), specifying that a section 212(d)(4) waiver request is to be decided in the first instance by
the district director. But, 

 (1982) provides further:
"Refusal of a district director to authorize admission under section
213, or to grant an application for the benefits of section 211, section 212(d)(3) or (4), or section 212(c), . . shall be without prejudice
to the renewal of such application [before] or the authorizing of
such admission by the special inquiry officer without additional
fee." (Emphasis added.) It also should be noted that as long ago as
1969 in Matter of Le Floch, 

 (BIA 1969), we implicitly applied this provision and accepted the exercise of jurisdiction
by immigration judges and the Board over section 212(d) waivers.
Accordingly, we now conclude there does exist explicit regulatory
authorization for the exercise of such jurisdiction where an alien
renews his section 212(d)(4) waiver application in exclusion proceedings following initial denial by the district director.
   In view of the foregoing, we hold that the Board and immigration judges have jurisdiction to entertain an application for waiver
of inadmissibility under section 212(d)(4) of the Act where an alien
renews such application before an immigration judge in exclusion
proceedings following its initial denial by the district director. In so
holding, we overrule Matter of Ketema, supra, and reaffirm Matter
of Le Floch, supra. 3
  Applying the above holding to the facts of this case, the applicant is entitled to renew his application for a section 212(d)(4)
waiver before the immigration judge in these exclusion proceedings. Therefore, the record will be remanded to the immigration
judge for his consideration of that application. Should this waiver
be approved, the applicant will be admitted to the United States as

   3 We note that a section 212(dX4) waiver is granted only through "joint action"
with the Secretary of State which, in practice, is accomplished by consultation with
and the concurrence of the Director of the State Department Visa Office. 

(1) (1984).

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a nonimmigrant student; if not, the immigration judge will reinstate his order of exclusion and deportation.
   ORDER: The decision of the immigration judge is vacated, and
the record is remanded to the immigration judge for further proceedings consistent with the foregoing opinion and for entry of a
new decision.




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