Interim Decision #3205
MATTER OF H-
In Adjustment of Status Proceedings
Decided by the Associate Commissioner,
Examinations, June 11, 1993
(1) An applicant for temporary resident status under section 245A of the Immigration
and Nationality Act, 8 U.S.C. § 1255a (1988), has the burden to establish eligibility
for the benefit sought by a preponderance of the evidence. B C.F.R. § 245a.2(d)(5)
(1993). The sufficiency of all evidence produced by the applicant will be judged
according to its probative value and credibility. 8 C.F.R. § 245a.2(d)(6) (1993).
(2) Prior to 1982, section 265 of the Act, 8 U.S.C. § 1305 (1976), required any alien in
the United States in a lawful temporary status to notify the Attorney General in
writing of his address annually and at the expiration of each 3-month period,
regardless of whether the address had changed.
(3) An alien who failed to comply with the reporting requirements under section 265 was
amenable to deportation proceedings, unless he was able to establish that the failure
was reasonably excusable or not willful. Section 266(b) of the Act,
8 U.S.C. § 1306(b)
(1976).
(4) An applicant for temporary resident status pursuant to section 245A of the Act has
established a credible claim to willfully violating the reporting requirements under
section 265 of the Act when he has consistently advanced this claim not only on his
initial Application for Status as a Temporary Resident (Form 1-687), but also in an
affidavit submitted to the Immigration and Naturalization Service, and at his
adjustment of status interview.
(5) A nonimmigrant student who willfully failed to comply with the reporting
requirements of section 265 of the Act is deemed to have violated his status and
thereby to be in an unlawful status for purposes of adjustment under section 245A of
the Act.
(6) The absence of mandatory annual and quarterly registration reports from Government files in violation of section 265 of the Act does not warrant a finding that the
applicant's unlawful status was "known to the Government" as of January I, 1982.
ON BEHALF OF APPLICANT: Jenny C.Y. Ling, Esquire
Lee, Lee & Ling
8 Chatham Square, Suite 500
New York, New York 10036
This matter is an application for temporary resident status denied
by the director, Eastern Regional Processing Facility, and now on
appeal before the Legalization Appeals Unit. The appeal will be
dismissed.
The applicant is a 52-year-old native and citizen of the People's
Republic of China who made an application for temporary resident
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status on May 4, 1988. The Application for Status as a Temporary
Resident (Form 1-687) indicates that the applicant violated his
nonimmigrant status by failing to comply with section 265 of the
Immigration and Nationality Act, 8 U.S.C. § 1305 (1976).
An applicant for temporary resident status must establish entry into
the United States before January I, 1982, and continuous residence in
the United States in an unlawful status since such date and through the
date the application is filed. In the case of an alien who entered the
United States as a nonimmigrant before January 1, 1982, the applicant
must establish that the period of authorized stay as a nonimmigrant
expired before such date through the passage of time or that the alien's
unlawful status was "known to the Government" as of such date.
Section 245A(a)(2)(B) of the Act, 8 U.S.C. § 1255a(a)(2)(B) (1988).
An applicant for temporary resident status under section 245A of
the Act has the burden to establish eligibility for the benefit sought by
a preponderance of the evidence. 8 C.F.R. § 245a.2(d)(5) (1993). The
sufficiency of all evidence produced by the applicant will be judged
according to its probative value and credibility. 8 C.F.R.
§ 245a.2(d)(6) (1993).
Prior to 1982, section 265 of the Act required any alien in the
United States in a lawful temporary status to notify the Attorney
General in writing of his address annually and at the expiration of each
3-month period, regardless of whether the address had changed. An
alien who failed to comply with this requirement was amenable to
deportation proceedings, unless he was able to establish that the failure
was reasonably excusable or not willful. Section 266(b) of the Act,
8
U.S.C. § 1306(b) (1976).
The director determined that the applicant entered the United
States on July 23, 1980, as a nonimmigrant student ("F-1") with a stay
authorized for the duration of his student status. The director found
that the applicant had provided no evidence to establish that his
authorized stay expired prior to January I, 1982, or that he was in an
unlawful status which was "known to the Government" as of that date.
On appeal, counsel asserts that the applicant violated his nonimmigrant status by failing to comply with section 265 of the Act. Counsel
further claims that this violation of status was "known to the
Government" as of January I, 1982.
The record reflects that the applicant first entered the United States
as a nonimmigrant student ("F-1") at Anchorage, Alaska, on July 23,
1980. He was authorized to remain for the duration of his student
status. The applicant attended the University of Detroit, Detroit,
Michigan, from 1980 through 1982. In the spring of 1982, he began
studying at Fiorello H. LaGuardia Community College of the City
University of New York, Long Island, New York.
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The applicant's authorized stay, therefore, did not expire prior to
January 1, 1982. As a result, in order to be eligible for the benefit
sought, the applicant must establish that he was in an unlawful status
before January 1, 1982, and further, that his unlawful status was
"known to the Government" as of January 1, 1982.
The first issue in this matter is whether the applicant was in an
unlawful status prior to January 1, 1982. The applicant filed Form I-
687 on May 4, 1988. At item 29 of that form, the applicant indicated
that he had violated his student status by failing to comply with
section 265 of the Act. Further, the Legalization Examiner's Worksheet (Form 1 696) contained in the record documents the discussion
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at the adjustment of status interview concerning the applicant's
knowledge of the address reporting requirement and his willful failure
to comply. In pertinent part, an affidavit dated October 13, 1988, and
submitted by the applicant similarly states, "I was aware of the fact
that I was required to file the alien registration forms with the
Immigration and Naturalization Service, but willfully failed to do so."
From the time of the applicant's initial entry, notes counsel, until
December 29, 1981, with enactment of the Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116, 95 Stat. 1617, the
applicant was statutorily required to file at least seven address reports
with the Attorney General. Despite the fact that the applicant clearly
had knowledge of the reporting requirements of section 265 of the Act,
asserts counsel, he willfully and consistently failed to file. As statutorily mandated, the applicant was amenable to deportation proceedings
for his failure to file. Counsel argues it would be duplicitous and unjust
to determine, on one hand, that the applicant was deportable and his
status unlawful for purposes of section 265 and yet, on the other hand,
to determine that his status was not unlawful for purposes of section
245A of the Act.
Counsel's argument is persuasive. The applicant's claim of willfully
violating the mandatory obligation to file address reports, which has
been advanced since the initial application, is unreservedly credible.
The applicant's Form 1-687 lists the violation of section 265 of the Act
as the only ground of eligibility for the benefit sought. Moreover, this
claim was buttressed by an affidavit and discussed with the legalization officer at the time of the applicant's interview.
A credibility determination includes an examination of an applicant's pattern of compliance and selective noncompliance with all
Service regulations prior to January 1, 1982. An applicant's credibility
may be diminished when he asserts a claim of willful noncompliance
with section 265 of the Act, but has complied with all other required
regulations prior to January 1, 1982, and throughout his stay in the
United States.
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It follows that the applicant's credible claim of willfully violating
section 265 of the Act constitutes a violation of his nonimmigrant
status. He has, therefore, established that he was in an unlawful status
for purposes of adjustment under section 245A of the Act.
The only issue remaining is whether this violation of status was
"known to the Government" as of January 1, 1982. In Matter of P , 19 -
I&N Dec. 823, 825 (Comm. 1988), the Commissioner held that an
alien who claims his unlawful status was "known to the Government"
as of January 1, 1982, must establish that prior to January 1, 1982,
documents existed in one or more Government agencies so, when such
documentation is taken as a whole, it warrants a finding that the
alien's status in the United States was unlawful. In the matter at hand,
counsel claims that the applicant's failure to comply with section 265
of the Act was "known to the Government." This claim is based on the
absence of annual and quarterly address reports from Government
files.
Counsel's position on the issue is not persuasive. It is not reasonable
to impute knowledge to the Government based on the absence of a
document. Such an absence would not necessarily alert the Government that the alien was in an unlawful status, as it could also imply
that the alien had left the United States nr inadvertently failed to file
the registration reports. Therefore, the absence of mandatory annual
and quarterly registration reports from Government files does not
warrant a finding that the applicant's unlawful status was "known to
the Government" as of January 1, 1982.
On appeal, the applicant has established by a preponderance of the
evidence that he was in an unlawful status prior to January 1, 1982. He
has failed, however, to establish that this unlawful status was "known
to the Government" as of January 1, 1982.
An alien applying for adjustment of status has the burden of proving
by a preponderance of the evidence that he has resided in the United
States for the requisite periods, is admissible to the United States
under the provisions of section 245A of the Act, and is otherwise
eligible for adjustment of status. 8 C.F.R. § 245a.2(d)(5) (1993). The
applicant has not met this burden.
ORDER: The appeal is dismissed.
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